Filed: December 13, 1991
R. Kemp Morton, Esq.
Huddleston, Bolen, Beatty,
Porter & Copen
Huntington, West Virginia
Counsel for Petitioner Fallsway
Jeffrey A. Taylor, Esq.
Vinson, Meek, Lewis & Pettit
Huntington, West Virginia
Counsel for Petitioners Barboursville Block
and Barboursville Transfer, Inc.
James Allan Colburn, Esq.
Colburn and Morris
Huntington, West Virginia
Counsel for A Respondent DICO, Inc.
Nancy Wilson, Esq.
Preiser Law Offices
Charleston, West Virginia
Counsel for Plaintiffs Below
This Opinion was delivered PER CURIAM.
"A writ of prohibition shall lie as a matter of right in all
cases of usurpation and abuse of power, when the inferior court has
not jurisdiction of the subject matter in controversy, or, having
such jurisdiction exceeds its legitimate powers." Syl. Pt. 1,
State ex rel. UMWA Int'l Union v. Maynard, ___ W. Va. ___, 342
S.E.2d 96 (1985).
Petitioners, Fallsway Equipment Company, Barboursville
Transfer, Inc., and Barboursville Block Manufacturing Company, have
petitioned this Court for a writ of prohibition against the
Honorable L. D. Egnor, Judge of the Circuit Court of Cabell County,
West Virginia. The petitioners contend that they were improperly
reinstated as defendants in a civil action from which they had
previously been dismissed with prejudice. We agree with the
contentions of the petitioners and grant the writ of prohibition
The underlying civil action was initiated by William Edward
Rowe and Betty Marie Rowe, his wife, in May 1987, based upon
injuries Mr. Rowe allegedly suffered on October 21, 1986, as a
result of the combined negligence of the three petitioners and
DICO, Inc., an Iowa corporation.
Mr. Rowe was allegedly injured when he came into contact with an overhead power line while in the employment of Barboursville Transfer, Inc. According to the plaintiffs' theory of the case, Mr. Rowe was operating a trolley boom hoist crane from which the stabilizing outriggers had been removed. The crane had been manufactured by DICO and had been sold to Fallsway Equipment. At
the time of the original sale, it was allegedly equipped with
outriggers. Fallsway Equipment then sold the crane to
Barboursville Transfer without the outriggers. Mr. Rowe was
subsequently injured while in the employment of Barboursville
Transfer when he attempted to unload bricks at a customer's
residence in Sarah Ann, West Virginia. Allegedly due to the lack
of outriggers, the crane lacked sufficient stability, and the boom
of the crane came into contact with an overhead power line,
injuring Mr. Rowe.
The three petitioners and DICO were named as defendants in the
underlying civil action. By agreement between the plaintiffs and
each of the individual petitioners, each petitioner was dismissed
with prejudice. Barboursville Block was first dismissed on October
27, 1987, due to the discovery that Barboursville Block was not
connected with the incident complained of and had not ever owned
the crane in question. Barboursville Transfer was then dismissed
on October 28, 1988, upon joint motion of the plaintiffs and
Barboursville Transfer. Fallsway Equipment was then dismissed on
March 15, 1990. Dico was the sole defendant in the action after
the dismissals. On January 16, 1991, DICO filed a third-party
complaint against the three petitioners. In response, the three
petitioners filed motions to dismiss the third-party complaint, and
those motions to dismiss were granted on April 17, 1991. The lower
court directed entry of a final judgment in favor of the three
On May 15, 1991, during DICO's hearing on its motion for summary judgment, Judge Egnor summoned counsel for Fallsway Equipment, Barboursville Block, and Barboursville Transfer and informed them that irrespective of his April 17, 1991, order, he considered them parties to the case. It is the May 15, 1991, reinstatement of the petitioners as defendants to which the petitioners now object.
Although the writ of prohibition presently under consideration
is directed by the three petitioners toward Judge Egnor, it is
worthwhile to note that a "Motion to Expedite" has been filed on
behalf of William Edward and Betty Marie Rowe. In support thereof,
the plaintiffs emphasized that the incident occurred in October
1986, when Mr. Rowe was sixty-six years of age. The suit has been
pending for over four years. The plaintiffs point out that DICO
brought on for hearing its Motion to Bring in Third-Party
Defendants just seven weeks before the scheduled trial date of
October 15, 1990. The plaintiffs also cite Shamblin v. Nationwide
Mut. Ins. Co., ___ W. Va. ___, 396 S.E.2d 766 (1990), for the
proposition that impleader under West Virginia Rule of Civil
Procedure 14(a) should not be permitted if there is a possibility
of prejudice to the original plaintiff. The plaintiffs contend
that the delay occasioned by DICO's maneuvering has prejudiced the
"A writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction exceeds its legitimate powers." Syl. Pt. 1, State ex rel. UMWA Int'l Union v. Maynard, ___ W. Va. ___, 342 S.E.2d 96 (1985).
In the present case, an order was entered dismissing the
petitioners with prejudice, and a subsequent order was entered
reinstating those petitioners as defendants. The initial order
dismissing the petitioners was entered pursuant to Rule 54(b) of
the West Virginia Rules of Civil Procedure. Rule 54(b), in
pertinent part, provides as follows:
Judgment upon multiple claims or involving
multiple parties. - When more than one claim for
relief is presented in an action, whether as a
claim, counterclaim, cross-claim or third-party
claim, or when multiple parties are involved, the
court may direct the entry of a final judgment as
to one or more but fewer than all of the claims or
parties only upon an express determination that
there is no just reason for delay and upon an
express direction for the entry of judgment.
The April 17, 1991, order dismissing the petitioners contained the Rule 54(b) language, specifically stating that "[t]he Court finds that there is no just reason for delay in ruling on the motions . . . " and "directs the entry of a final judgment in favor of [the petitioners]."
Rule 59 of the West Virginia Rules of Civil Procedure enunciates the manner and time within which such judgments may be
amended. Pursuant to Rule 59(e), a motion to alter or amend must
be served within ten days from the entry of judgment.See footnote 1 Rule 60(b)
also provides the means by which a party may seek relief from a
judgment obtained through a mistake, fraud, inadvertence, etc. No
motion pursuant to Rule 60(b), however, was filed in this case.
The lower court reinstated the petitioners on its own initiative
approximately twenty-eight days after the entry of the order
dismissing the petitioners. We can find no procedural
justification for this deviation from the accepted rules of
procedure. Furthermore, DICO, relying upon principles of
contribution in its opposition to the petition for a writ of
prohibition, has provided us with no acceptable procedural
justification.See footnote 2
It is the opinion of this Court that the order dismissing the petitioners was a final, appealable order. The record discloses that no action was taken to modify that judgment within ten days as required by Rule 59(e). Consequently, the lower court was without
authority to enter the order in which it attempted to rejoin the
petitioners as parties defendant.
Based upon the foregoing, we hereby Adjudge and Order that the
requested prohibition be awarded. The clerk of this Court is
directed to furnish an attested copy of this Order to all counsel
of record and to the respondent judge. It is further Adjudged and
Ordered that service of an attested copy of this Order upon the
respondent shall have the same force and effect as the service of
a formal writ.
Footnote: 1Specifically, Rule 59(e) provides as follows:
Motion to alter or amend a judgment. - A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.
Footnote: 2This petition for writ of prohibition is before us on the narrow issue of the procedural propriety of the lower court's attempt to rejoin the petitioners as defendants after previously dismissing them. Therefore, due to the procedural posture in which this case appears before us, we do not address DICO's substantive theories regarding issues of contribution among joint tortfeasors.