Foster v. Good Shepherd Interfaith, et al
Annotate this Case IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
January 1998 Term
___________
No. 24488
___________
JERI FOSTER,
Appellant,
v.
GOOD SHEPHERD INTERFAITH
VOLUNTEER CAREGIVERS, INC., a West
Virginia corporation, CRESS CREEK GOLF & COUNTRY
CLUB, INC., a West Virginia corporation, and THE
ROTARY CLUB OF SHEPHERDSTOWN, INC., a
West Virginia corporation,
Appellees.
________________________________________________________
Appeal from the Circuit Court of Jefferson
County
Hon. Christopher Wilkes, Judge
Case No. 96-C-115
REVERSED
________________________________________________________
Submitted: January 20, 1998
Filed: March 12, 1998
Lawrence M. Schultz,
Esq. Russell
R. Marks, Esq.
Burke &
Schultz Charleston,
West Virginia
Martinsburg, West
Virginia Attorney
for Appellee Cress Creek
Attorney for
Appellant
Golf & Country Club, Inc.
Nancy A. Dalby,
Esq. Christopher
D. Janelle, Esq.
Braun A. Hamstead,
Esq. Henry,
Taylor & Janelle
Charles Town, West
Virginia Martinsburg,
West Virginia
Attorney for Appellee
Good Attorney
for Appellee Shepherdstown
Shepherd Interfaith
Volunteer
Rotary, Inc.
Caregivers, Inc.
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "Although
courts should not set aside default judgments or dismissals
without good cause, it is the policy of the law to favor the
trial of all cases on their merits." Syllabus Point 2, McDaniel
v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972).
2. "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." Syllabus Point 6, Toler v. Shelton, 157
W.Va. 778, 204 S.E.2d 85 (1974).
Per Curiam:See
footnote 1 1
This appeal was
brought by the appellant, Jeri Foster, the plaintiff below,
requesting that this Court reverse the order of the Jefferson
County Circuit Court entered on April 10, 1997 which denied the
plaintiff's motion to set aside and vacate a judgment of
dismissal. The dismissal was entered in favor of all three
defendants after one defendant, Good Shepherd Interfaith
Volunteer Caregivers ("Good Shepherd"), filed a
supplemental motion to dismiss. The trial court treated Good
Shepherd's supplemental motion to dismiss as a motion for summary
judgment for all defendants, and dismissed the case with
prejudice. The appellant argues first, that the circuit court
erred in granting the dismissal, and second, that the circuit
court further erred in denying appellant's motion to set aside
the judgment. We
find that the trial court abused its discretion in denying
appellant's motion to set aside and vacate the judgment, and
erred in granting Good Shepherd's supplemental motion to dismiss.
Accordingly, we reverse and remand this matter for further
proceedings.
I.
On May 10, 1996,
the appellees and defendants below, Good Shepherd and The Rotary
Club of Shepherdstown ("Rotary") sponsored a charity
golf tournament that was hosted by appellee and defendant below
Cress Creek Golf & Country Club ("Cress Creek").
The
appellant, Jeri Foster, entered the contest. On the day of the
event Foster received a copy of the rules governing the
tournament that included a listing of the prizes to be awarded.
The rules also stated the tournament format. The players were
instructed that the "Men will play from the Blue tee and the
Ladies will play from the red tee markers." The copy of the
rules also listed "Hole in One prizes," including one
for the 11th hole which was a "new car valued at $20,000.00
from Opequon Motors."
During tournament
play the appellant hit a hole-in-one on the 11th hole playing
from the red tee marker. After celebrating her shot, she was
informed that she would not be awarded the prize because she had
played from the ladies' tee and not the men's.
Through a
verified complaint the appellant filed suit requesting that the
defendants honor their promise of a new car. All three defendants
filed separate motions to dismiss prior to filing answers to the
appellant's complaint. Counsel for the appellant filed a brief
opposing these motions. By order dated December 10, 1996 the
circuit court denied all three defendants' motions to dismiss,
asserting that the plaintiff's complaint did state a cause of
action.
On December 16,
1996 defendant Good Shepherd filed a "Supplemental Motion to
Dismiss" and attached an affidavit of an individual who
claimed to have been with the appellant when appellant made her
hole-in-one, and claimed that the appellant had stated at the
time that she knew she had not won.
Counsel
for the appellant mailed a response to Good Shepherd's
supplemental motion to dismiss to the clerk of the circuit court
on January 6, 1997, but the response was not recorded as filed in
the circuit clerk's office until January 8, 1997. On the same day
the response was filed, the circuit court entered an order
dismissing the case in favor of all three defendants.See footnote 2 2 Stamped
on the order was the following: "NOTE TO COUNSEL THE COURT
HAS RECEIVED NO PLEADINGS IN OPPOSITION TO THIS MOTION DURING THE
TIME PERIOD CONTEMPLATED BY THE LOCAL RULE." Local Rule
92-AD-105 requires that any motion must be responded to within 15
days of service.See footnote
3 3
Following the
dismissal, a new attorney was hired by the appellant who
subsequently filed a motion seeking to vacate the dismissal order
pursuant to West Virginia Rule of Civil Procedure, 60(b).See footnote 4 4 Appellant's
motion was denied; this appeal followed.
II.
We first examine
the appellant's argument that the circuit court's denial of
appellant's Rule 60(b) motion to set aside and vacate judgment of
dismissal was error.
We have held that
"[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." Syllabus Point 5, Toler v. Shelton, 157
W.Va. 778, 204 S.E.2d 85 (1974). In accord, Syllabus Point
1, Jackson General Hospital v. Davis, 195 W.Va. 74, 464 S.E.2d 593 (1995); Syllabus Point 1, Nancy Darlene M. v. James
Lee M., 195 W.Va. 153, 464 S.E.2d 795 (1995).
We have
previously analogized dismissals to default judgments. See,
e.g., Davis v. Sheppe, 187 W.Va. 194, 417 S.E.2d 113
(1992); Toler v. Shelton, supra. In default
judgment and dismissal cases we have stated that public policy
favors results based on the merits of a particular case and not
on technicalities. "Although courts should not set aside
default judgments or dismissals without good cause, it is the
policy of the law to favor the trial of all cases on their
merits." Syllabus Point 2, McDaniel v. Romano, 155
W.Va. 875, 190 S.E.2d 8 (1972). In accord, Syllabus Point
3, Davis v. Sheppe, supra.
In Davis v.
Sheppe, supra, the plaintiff's attorney failed to appear for
trial and the circuit court granted the defendant's motion to
dismiss the case for failure to prosecute. The plaintiff appealed
the circuit court's dismissal without filing a motion pursuant to
West
Virginia Rule of Civil Procedure, Rule
60(b). We treated the plaintiff's appeal as an appeal from a Rule
60(b) motion and determined that the judge abused his discretion
in dismissing the matter.
Looking to the
federal courts and other jurisdictions this Court has made clear
that a dismissal is the harshest of sanctions and should be
rendered only in extreme situations. In Davis we said:
Rightfully,
courts are reluctant to punish a client for the behavior of his
lawyer . . . . Therefore, in situations where a party is not
responsible for the fault of his attorney, dismissal may be
invoked only in extreme circumstances. . . . Indeed, it has been
observed that '[t]he decided cases, while noting that dismissal
is a discretionary matter, have generally permitted it only in
the face of a clear record of delay or contumacious conduct by
the plaintiff.' Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967). Appellate courts frequently have
found abuse of discretion when trial courts failed to apply
sanctions less severe than dismissal . . . . And generally lack
of prejudice to the defendant, though not a bar to dismissal, is
a factor that must be considered in determining whether the trial
court exercised sound discretion.
Davis v. Sheppe, 187 W.Va. at 197, 417 S.E.2d at 116, quoting Reizakis v. Loy, 490 F.2d
1132, 1135 (4th Cir. 1974) (citations omitted).
In Bell v.
Inland Mutual Insurance Co., 175 W.Va. 165, 172, 332 S.E.2d 127, 134, (1985) we similarly stated that the rendering of
judgment by default under West Virginia Rule of Civil
Procedure, Rule 37, was also considered the harshest of
sanctions and that this sanction "should be used sparingly
and only in extreme situations" because the policy of law
favors disposition on the merits.
A
circuit court when presented a Rule 60(b) motion should bear in
mind the policy behind the rule. "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." Syllabus Point
6, Toler v. Shelton, supra. "Rule 60(b) should be
liberally construed to accomplish justice[.]" Kelly v.
Belcher, 155 W.Va. 757, 773, 187 S.E.2d 617, 626 (1972). See
also, Cruciotti v. McNeel, 183 W.Va. 424, 430, 396 S.E.2d 191, 197 (1990).
Next, we examine
appellant's argument that it was error for the circuit court to
grant Good Shepherd's supplemental motion to dismiss, the
underlying basis for the denial of appellant's motion to set
aside and vacate judgment of dismissal.
In the instant
case Good Shepherd filed a supplemental motion to dismiss six
days after the trial court denied all of the defendants' original
motions to dismiss.
The attorney for
the appellant mailed a response to defendant Good Shepherd's
supplemental motion to dismiss two days before an order
dismissing the case was entered. Appellant's response was,
however, filed a few days late under Local Rule 92-AD-105. The
local rule lists seven instances in which its 15-days to respond
would not apply. We find it
ironic that a motion for default judgment is one
of the "exclusions" listed in the local rule, when, in
this case, the appellant's action was dismissed, in essence, by
default.See footnote 5 5
In addition to
citing the local rule governing time for responses, the circuit
court, in ruling for all defendants, converted Good Shepherd's
supplemental motion to dismiss into a motion for summary judgment
pursuant to West Virginia Rule of Civil Procedure, Rule
56.See footnote 6 6
As we stated in
Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), we review a circuit court's entry of summary
judgment de novo.
Rule 56(e) does
not specifically require a counter-affidavit, but states that a
court may "permit [movant's] affidavits to be . . . opposed
by depositions, answers to interrogatories, or further
affidavits." It also states that when a motion for summary
judgment is made "an adverse party may not rest upon the
mere allegations or denials of his pleading, but his response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine
issue for trial." Rule 56 (c) also sets forth what may be
examined by a judge in deciding on a summary judgment motion.
Rule 56(c) provides that "[t]he judgment sought shall be
rendered forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." (Emphasis added.)
In this case the
appellant's counsel filed two separate briefs in opposition to
the defendants' motions to dismiss and, in the briefs, counsel
directed the court's attention to the contest rules and to
appellant's sworn factual statements in her verified
complaint.
Blacks Law
Dictionary defines affidavit as:
A written or
printed declaration or statement of facts, made voluntarily, and
confirmed by the oath or affirmation of the party making it,
taken before a person have authority to administer such oath or
affirmation.
Black's defines verification as a
"confirmation of correctness, truth or authenticity, by
affidavit, oath, or deposition." A verified complaint is not
a "mere allegation" but a statement sworn to before a
notary. Therefore we believe that the circuit court had two
opposing sworn statements of fact presented to it. Our view of
these statements indicates that they created material questions
of fact; therefore, the case was not properly subject to summary
judgment.
III.
In this case the
circuit court erred in granting summary judgment for the
defendants, and abused its discretion in denying the appellant's
motion to vacate its order of dismissal. Therefore, the judgment
of the Circuit Court of Jefferson County is reversed and this
matter is remanded for further proceedings.
Reversed and Remanded.
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).
Footnote: 2 2 It is unclear which document was filed first on January 8, 1997 because the time clock utilized by the Jefferson County circuit clerk appears to have been locked on 12:30 p.m.; all documents in the record of this case which have time stamps are stamped as "12:30 p.m." We would note, however, that the appellant's response precedes the circuit court's order in the court file.
Footnote: 3 3 Rule 83 of the West Virginia Rules of Civil Procedure allows for local rules to be established so that the individual circuit courts can govern their proceedings. Local rules must be approved by the Supreme Court of Appeals and not be inconsistent with the other rules of civil procedure. The local rule used in this matter was approved by the Supreme Court of Appeals in December of 1992.
Footnote:
4 4
The Supreme Court of Appeals recently made substantial amendments
to the West Virginia Rules of Civil Procedure; the changes
are to become effective April 6, 1998.
Rule 60 of the West Virginia Rules of
Civil Procedure was amended to extend the time to file a Rule
60(b)(1), (2), or (3) motion from eight months to one year.
Footnote:
5 5
The seven situations excluded from the 15-day time limit
established in Local Rule 92-AD-105 are as follows:
1. In cases in which a pro se party
has appeared of record;
2. Motions for default judgments;
3. Petitions for extraordinary remedies;
4. Rule 6(b) motions;
5. Motions concerning subpoenas;
6. Issues of an emergent nature arising
from aborted depositions; and
7. Motions to set a trial date or to
establish a discovery schedule or for a status hearing.
Footnote:
6 6
Rule 56 of the West Virginia Rules of Civil Procedure was
recently amended; see supra, footnote 4.
No substantive changes were made in Rule
56.
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.