McCormick v. Allstate Insurance
Annotate this Case
January 1995 Term
_________
NO. 22551
DONALD C. MCCORMICK,
Plaintiff Below, Appellant
V.
ALLSTATE INSURANCE COMPANY
AND DAVID DAILEY,
Defendants Below, Appellees
__________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Paul Zakaib, Jr., Judge
Civil Action No. 88-C-3965
DISMISSED
____________________________________________________________
Submitted: May 10, 1995
Filed: June 15, 1995
James C. Peterson
Harry G. Deitzler
Hill, Peterson, Carper, Bee
& Deitzler
Charleston, West Virginia
Attorneys for Appellant
Charles M. Love III
Benjamin L. Bailey
Bowles Rice McDavid Graff & Love
Charleston, West Virginia
Attorneys for Appellees
JUSTICE CLECKLEY delivered the Opinion of the Court.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER and JUDGE FOX sitting by temporary
assignment.
SYLLABUS BY THE COURT
1. "A court of limited appellate jurisdiction is obliged
to examine its own power to hear a particular case. This Court's
jurisdictional authority is either endowed by the West Virginia
Constitution or conferred by the West Virginia Legislature.
Therefore, this Court has a responsibility sua sponte to examine
the basis of its own jurisdiction." Syllabus Point 1, James M.B.
v. Carolyn M., W. Va. , 456 S.E.2d 16 (1995).
2. "Where neither party to an appeal raises, briefs, or
argues a jurisdictional question presented, this Court has the
inherent power and duty to determine unilaterally its authority to
hear a particular case. Parties cannot confer jurisdiction on this
Court directly or indirectly where it is otherwise lacking."
Syllabus Point 2, James M.B. v. Carolyn M., W. Va. , 456 S.E.2d 16 (1995).
3. "Under W. Va. Code, 58-5-1 (1925), appeals only may
be taken from final decisions of a circuit court. A case is final
only when it terminates the litigation between the parties on the
merits of the case and leaves nothing to be done but to enforce by
execution what has been determined." Syllabus Point 2, James M.B.
v. Carolyn M., W. Va. , 456 S.E.2d 16 (1995).
4. A motion made pursuant to Rule 59(a) of the West
Virginia Rules of Civil Procedure and filed within ten days of judgment being entered suspends the finality of the judgment and
makes the judgment unripe for appeal. When the time for an appeal
is so extended, its full length begins to run from the date of
entry of the order disposing of the motion.
Cleckley, Justice:
The plaintiff below and the appellant herein, Donald C.
McCormick, brings this appeal from a letter dated May 20, 1994,
issued by the Circuit Court of Kanawha County, in which the trial
court indicated it would not "re-edit or modify its order of May
18, 1994." The trial court's letter further advised the parties
that they may appeal the order if they so desire. The May 18,
1994, order stated the plaintiff did not substantially prevail in
the first stage of a bifurcated trial with regard to compensatory
damages; therefore, the trial court entered judgment for the
defendants on the second stage of the trial in which the plaintiff
sought punitive damages. The plaintiff alleged the defendants
breached the statutory duties imposed upon them by the West
Virginia Unfair Trade Practices statutes, W. Va. Code, 33-11-1, et
seq. The order also denied the defendants' below and appellees'
herein, Allstate Insurance Company's and David Dailey's, motion for
a judgment notwithstanding the verdict and, in the alternative,
their motion for a new trial.See footnote 1 On appeal, the plaintiff raises
several assignments of error to which the defendants respond and
make cross-assignments of error.
After the trial court issued its May 20, 1994, letter
stating it would not "re-edit or modify" its previous order, the parties, nevertheless, continued to file extensive motions in the
trial court. For instance, on May 27, 1994, the defendants filed
a motion for a new trial pursuant to Rule 59(a) of the West
Virginia Rules of Civil Procedure.See footnote 2 On June 3, 1994, the plaintiff
filed a supplemental motion requesting a rehearing and
reconsideration of the trial court's May 18, 1994, order. The
defendants then filed, on June 15, 1994, a response to the
plaintiff's motion. Although the trial court has not ruled on
these motions, the plaintiff asserted during oral argument before
this Court that we should consider the letter dated May 20, 1994,
as the final order for purposes of hearing this appeal. The
defendants acknowledged during oral argument that no final judgment
order has been entered. After reviewing the record, we find this
case was improvidently granted and this Court lacks jurisdiction to entertain the merits of the parties' arguments because there has
been no final judgment order entered by the trial court.
Our decision on this matter is controlled by our recent
decision of James M.B. v. Carolyn M., W. Va. , 456 S.E.2d 16
(1995). In James M.B., the plaintiffs, pro se, filed a "motion for
reconsideration" in the circuit court requesting it reexamine its
prior order dated June 30, 1994. Before the circuit court ruled on
the "motion for reconsideration," the plaintiffs, again pro se,
brought an appeal to this Court of the June 30, 1994, order. As a
result of the pending motion, we dismissed the appeal as
improvidently granted.
We began our discussion in James M.B. by declaring this
Court has a duty to examine its own jurisdictional authority even
if it is not raised by the parties. In Syllabus Points 1 and 2, we
stated:
"1. A court of limited appellate
jurisdiction is obliged to examine its own
power to hear a particular case. This Court's
jurisdictional authority is either endowed by
the West Virginia Constitution or conferred by
the West Virginia Legislature. Therefore,
this Court has a responsibility sua sponte to
examine the basis of its own jurisdiction.
"2. Where neither party to an
appeal raises, briefs, or argues a
jurisdictional question presented, this Court
has the inherent power and duty to determine
unilaterally its authority to hear a
particular case. Parties cannot confer
jurisdiction on this Court directly or
indirectly where it is otherwise lacking."
Thus, given the procedural history in the present case, we are
obligated to first determine if we have jurisdiction to entertain
the merits of the appeal.
To determine whether this Court has jurisdiction, we
further held in Syllabus Point 3 of James M.B.:
"Under W. Va. Code, 58-5-1 (1925),
appeals only may be taken from final decisions
of a circuit court. A case is final only when
it terminates the litigation between the
parties on the merits of the case and leaves
nothing to be done but to enforce by execution
what has been determined."See footnote 3
As we concluded in James M.B., only a final decision by a circuit
court, with few exceptions, may be appealed.See footnote 4 "This rule, commonly
referred to as the 'rule of finality,' is designed to prohibit
'piecemeal appellate review of trial court decisions which do not
terminate the litigation[.]'" James M.B., W. Va. at , 456 S.E.2d at 19, quoting United States v. Hollywood Motor Car Co.,
Inc., 458 U.S. 263, 265, 102 S. Ct. 3081, 3082, 73 L. Ed. 2d 754, 756
(1982). Therefore, our inquiry in the present case must be whether
the motions filed in the trial court after the trial court's order
dated May 18, 1994, and the letter dated May 20, 1994, suspended
the finality of the judgment and made it unripe for appeal.
In this case, the defendants filed their motion for a
new trial on May 27, 1994, which was within the ten-day requirement
of Rule 59(b).See footnote 5 Even if we determine the letter dated May 20,
1994, was not an "order," per se, and we only consider the order
dated May 18, 1994, as the "final order" entered in this case, the
defendants still timely filed their motion for a new trial within
the ten-day period. In addition, we find that some of the issues
the defendants raise in their motion for a new trial are identical
and may be dispositive of the issues they now raise on appeal. For
instance, the defendants assert both in their motion before the
trial court and in this appeal by cross-assignment of error that
the jury's verdict is contrary to the law, the jury's verdict is
contrary to the evidence, and the jury was instructed erroneously
with regard to the meaning of the phrase "actual cash value."
Moreover, on June 3, 1994, the plaintiff filed a
supplemental motion with the trial court for a rehearing and reconsideration of its May 18, 1994, order. The plaintiff alleged
the trial court imposed artificial requirements on an insured's
duty during settlement negotiations which affected the plaintiff's
ability to be declared to have "substantially prevailed" at the
first stage of the trial. It is obvious from the plaintiff's
opening paragraph in his supplemental motion that he did not
believe the litigation before the trial court had ended. He begins
his motion by stating: "Presently pending before [the trial court]
is plaintiff's initial Motion for Rehearing and Reconsideration on
entry of [the trial court's] Order relating to Post-Trial Motions
to which the plaintiff would like to append this Supplemental
Motion for Rehearing and Reconsideration on the issue raised
above."See footnote 6 Like the defendants' motion, the plaintiff raises issues
in his supplemental motion that would be dispositive of some of the
issues brought to this Court on appeal if the trial court ruled in
his favor. The primary issue therein being whether the plaintiff "substantially prevailed" at the first stage of the trial and,
therefore, is able to proceed to the second stage for punitive
damages.
In James M.B., we determined that when there is a pending
motion made under Rule 59(e) of the West Virginia Rules of Civil
Procedure, the finality of the judgment is suspended. As
previously mentioned, a judgment is final only if the litigation is
terminated on the merits and there is nothing left to be done
except to enforce the judgment. See also Charles A. Wright &
Arthur R. Miller, 11 Federal Practice and Procedure: Civil § 2821
at 136 (1973) (if a motion is timely made under Rule 59 of the
Federal Rules of Civil Procedure and has not been disposed of by
the trial court, "the case lacks finality. For that reason, the
subsequent filing of a notice of appeal is a nullity and does not
deprive the trial court of power to rule on the motion." (Footnote
omitted)).
Upon review of the facts, we determine the trial court
retained its jurisdiction over this case as a result of the pending
Rule 59(a) motion filed by the defendants. In addition, it is
clear that at the time the defendants and the plaintiff filed their
motions both the parties believed the litigation was not complete
at the trial level and the trial court retained jurisdiction over
the case. Merely because the trial court did not rule upon the
pending motions does not strip it of its authority to do so and give this Court jurisdiction to entertain a direct appeal. To hold
otherwise would divest a trial court of its right to decide issues
that may make an appeal unnecessary. We decline to endorse a
position that would permit duplicative litigation of issues at the
trial level at the same time the issues are on appeal to this
Court. In fact, as we concluded in James M.B., W. Va. at ,
456 S.E.2d at 22, such a result is "entirely consistent with, and
perhaps required by W. Va. Code, 58-5-1." Thus, we conclude that
a motion made pursuant to Rule 59(a) and filed within ten days of
judgment being entered suspends the finality of the judgment and
makes the judgment unripe for appeal. When the time for an appeal
is so extended, its full length begins to run from the date of
entry of the order disposing of the motion. Compare Syl. pt. 7,
James M.B.See footnote 7
For the foregoing reasons, we determine this case was
improvidently granted, and we dismiss this case without prejudice.
Dismissed.
Footnote: 1
We also find neither the May 18, 1994, order nor the May
20, 1994, letter actually entered the jury verdict in favor of
the plaintiff in the total amount of $995.Footnote: 2
Rule 59(a) provides:
" Rule 59. New Trials; Amendment of
Judgments. (a) Grounds.--A new trial may be
granted to all or any of the parties and on
all or part of the issues (1) in an action in
which there has been a trial by jury, for any
of the reasons for which new trials have
heretofore been granted in actions at law;
and (2) in an action tried without a jury,
for any of the reasons for which rehearings
have heretofore been granted in suits in
equity. On a motion for a new trial in an
action tried without a jury, the court may
open the judgment if one has been entered,
take additional testimony, amend findings of
fact and conclusions of law or make new
findings and conclusions, and direct the
entry of a new judgment."Footnote: 3
In relevant part, W. Va. Code, 58-5-1, provides:
"A party to a controversy in any
circuit court may obtain from the supreme
court of appeals, or a judge thereof in
vacation, an appeal from, or a writ of error
or supersedeas to, a judgment, decree or
order of such circuit court in the following
cases: (a) In civil cases where the matter
in controversy, exclusive of costs, is of
greater value or amount than one hundred
dollars, wherein there is a final judgment,
decree or order[.]" (Emphasis added).Footnote: 4
We recognized in note 3 of James M.B., W. Va. at ,
456 S.E.2d at 19-20, that this Court has the authority to
"address specific issues that arise by writs of prohibition,
certified questions, or by judgments rendered under Rule 54(b) of
the West Virginia Rules of Civil Procedure." Footnote: 5
Rule 59(b) provides: Time for motion.--A motion for a new
trial shall be served not later than 10 days after the entry of
the judgment."Footnote: 6
It is difficult for us to determine when the plaintiff's
initial motion for rehearing and reconsideration of the trial
court's order was filed. There is nothing in the index to the
voluminous record in this case that indicates when this initial
motion was filed. In addition, scanning the record
chronologically, we cannot find a written motion by the plaintiff
filed between the May 18, 1994, order and the "supplemental"
motion filed on June 3, 1994. As a result of our finding that
the defendants' motion was timely filed under Rule 59(a) and (b),
we need not determine if the plaintiff's initial motion also was
timely filed. We do mention, however, that if it was timely
filed it would be considered a motion made pursuant to Rule 59(e)
of the West Virginia Rules of Civil Procedure. As we stated in
Syllabus Point 1 of Lieving v. Hadley, 188 W. Va. 197, 423 S.E.2d 600 (1992): "A motion to amend or alter judgment, even though it
is incorrectly denominated as a motion to 'reconsider', 'vacate',
'set aside', or 'reargue' is a Rule 59(e) motion if filed and
served within ten days of entry of judgment."Footnote: 7
We used identical language with regard to Rule 59(e) in
Syllabus Point 7 of James M.B., which states:
"A motion for reconsideration filed
within ten days of judgment being entered
suspends the finality of the judgment and
makes the judgment unripe for appeal. When
the time for appeal is so extended, its full
length begins to run from the date of entry
of the order disposing of the motion."
Our holding as to the running of the appeal period is consistent
with our prior decisions. See Syl. pt. 1, in part, Abdulla v.
Pittsburgh and Weirton Bus Co., 158 W. Va. 592, 213 S.E.2d 810
(1975) ("when an appellant has moved seasonably for appropriate
relief under Rules 50(b), 52(b) or 59, the appeal time is
extended by Rule 72 and commences to run from the entry of the
order granting or denying such motions"); Mooney v. Barton, 155
W. Va. 329, 334, 184 S.E.2d 322, 325 (1971) (finding no merit to
an argument that the trial court's delay in entering an order
which denied a timely filed motion for a new trial should be
considered by this Court as entered nunc pro tunc to a date
nearly six months earlier. We reasoned that a party who seeks to
bring an appeal cannot be denied "this right by the failure of
the trial court, for whatever reason, to enter a timely order or
some memorandum of the action taken from which a party may have a
right to appeal. Otherwise the appealable order might be
withheld for over the eight-months' appeal period."
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.