Beryl A. Cunningham, Esquire
Parkersburg, West Virginia
Attorney for the Appellees
Philip B. Hill, Esquire
Logan Hassig, Esquire
Snyder & Hassig
New Martinsville, West Virginia
Attorney for the Appellant, Union Bank
of Tyler County
Keith White, Esquire
Attorney for the Defendant, First
National Bank of St. Mary's
JUSTICE NEELY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
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.
Calling a Rule 59(e) motion a motion to "reconsider", "vacate", "set aside", or "reargue" is confusing to a trial court, and where such motions are filed within ten days of judgment they should be correctly styled as Rule 59(e) motions to alter or amend judgment.
A motion which would otherwise qualify as a Rule 59(e) motion that is not filed and served within ten days of the entry of judgment is a Rule 60(b) motion regardless of how styled and does not toll the four month appeal period for appeal to this court.
One who takes by inheritance or by outright gift is
not a bona fide purchaser under West Virginia Code §46-8-302
, but merely a "purchaser" under West Virginia Code §46-8-301
There is a strong statutory presumption in favor of
construing joint tenancies as tenancies in common without a right
of survivorship; however, that presumption can be overcome by a
clear and convincing showing that the intention of the parties was
to create a joint tenancy with right of survivorship.
"A motion for summary judgment should be granted
only when it is clear that there is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to clarify
the application of the law." Syl. Pt. 3, Aetna Casualty and Surety
Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770
This is an unfortunate case of estate planning gone awry,
which has caused much grief among the family of the late Roberta
Lieving. There are complicated questions of fact that can only be
resolved by a full factual inquiry, so we reverse the summary
judgment granted by the Circuit Court of Wood County and remand for
a trial on the merits.
Before 1 January 1984, the Tyler County Bank had
registered and issued its stock certificate A-102 for two hundred
shares of its common stock as follows: "Thelma E. Hadley and Donna
Jean Tice and Roberta Lieving as joint tenants with right of
survivorship." On 1 January 1984, Tyler County Bank merged with
another bank and became the Union Bank of Tyler County. As part of
the merger, the Bank recalled all outstanding stock certificates in
order to issue new ones with the Union Bank's name. The by-laws of
the Union Bank provided that certificates would not be issued for
more than 100 shares.
Thelma E. Hadley is the mother of Donna Jean Tice and Roberta Lieving. Ms. Hadley delivered certificate A-102 to the Bank on or about January 1, and in return the Bank issued two certificates worth 100 shares each. The Bank issued certificate B-136 to "Thelma E. Hadley and Donna Jean Tice" and certificate B-137 to "Thelma E. Hadley and Roberta Lieving".See footnote 1 There is no mention of a joint tenancy with right or survivorship on the face of either of those two certificates. Ms. Hadley received the documents without comment. There is no clear reason for the change in registration: the Bank says it made a mistake and Mr. Lieving says it was an intentional change on the part of the joint tenants.
Sometime before Roberta Lieving's death, Ms. Hadley
apparently gave Ms. Lieving physical possession of the stock
certificates. The reason for this is unclear. Ms. Lieving died
with the certificates still in her possession on 24 April 1987.
Mr. Lieving, as executor of his wife's estate, went to the Bank and
inquired as to the status of the stock. The president of the Bank
told him that the stock was still registered in the name of Roberta
L. Lieving. Shortly thereafter, Ms. Hadley filed a written
statement with the Bank claiming that stock certificate B-137 had
been lost, stolen or misplaced. The Bank then issued stock
certificate B-306 in the names of Thelma E. Hadley, Donna Jean Tice
and Roberta L. Lieving, joint tenants with rights of survivorship
as a "re-issue" of certificate B-137.
On 16 March 1988, Mr. Lieving requested information about
how to have the shares transferred to him. The president of the
Bank informed him that the shares had been reissued to other
persons, and, therefore, he would not transfer them to Mr. Lieving.
The next day, the president of the Bank personally transferred the
stock represented by certificate number B-306 at the behest of Ms.
Hadley a third party and issued a new certificate in the name of
that third party.
The Circuit Court of Wood County granted Mr. Lieving's
motion for summary judgment, declaring that he was, as a matter of
law, entitled to 50 shares of Bank stock. The Bank filed and
served a motion to reconsider with the Circuit Court on 7 May 1990,
before the initial ruling was memorialized in a court order, signed
and entered.See footnote 2 The motion to reconsider was denied on 30 July 1991.
On 26 August 1991 the petition to this Court was filed. We denied
that first petition, and under Rule 7 of the West Virginia Rules of
Appellate Procedure. The Bank renewed its petition on 1 November
1991, and on that occasion we granted an appeal.
Mr. Lieving raises the issue of whether the Bank's appeal
is properly before this Court. The crux of the question is the
effect that the filing of a motion to reconsider has on the time
for appeal. For some time, lawyers have filed "motions for
reconsideration" with the circuit courts after those courts have
made their initial rulings but before appeals to this Court.
However, we have not previously stated clearly what the rules for
dealing with this type of motion are, nor how such motions affect
the time for appeal. This ambiguity has occasionally led to
problems, such as in this case, when a lawyer has filed a "motion
for reconsideration" and then waited until the circuit court ruled
on that motion before filing an appeal. If the circuit court took
more than four months to rule on such a motion, then the time for
appeal could arguably expire before the circuit court ruled on the
motion to reconsider.
To prevent this oddity from occurring, Rule 59(e) of the
West Virginia Rules of Civil Procedure allows for a motion "to
alter or amend a judgment." Under the Federal Rules of Civil
Procedure, motions to reconsider are routinely considered Rule
In order to avoid confusion, and to prevent harsh results for unwary parties, the courts have generally held that, regardless of its label, any motion made within ten days of entry of judgment will be considered a Rule 59(e) motion which suspends the finality of judgment and tolls the time of appeal. Thus, a motion to reconsider, vacate, set aside, or reargue will ordinarily be construed as Rule 59(e) motions if made within ten days of entry of judgment.
Moore's Federal Practice, page 59-265, Paragraph 59.12, (June
1989). Rule 59(e) respects the right of both parties to a full and
fair hearing as well as the right to finality. A party will know
within ten days whether the appeal period is tolled by a rule 59(e)
motion.See footnote 3 There is sound reasoning behind this approach under the
Federal Rules of Civil Procedure, and we hereby hold that a motion
to reconsider, vacate, set aside, or reargue shall be construed as
a Rule 59(e) motion if made (and served) within ten days of entry
However, when making a Rule 59(e) motion it is very
important plainly to call that motion a "Rule 59(e) motion to alter
or amend judgment." It is very confusing both to a trial court and
to opposing counsel to make motions that do not clearly fall within
the ambit of a particular rule. Furthermore, it allows opposing
counsel to make motions to dismiss appeals in this Court for lack
of timeliness, when such motions would not be invited were they
properly styled as a "Rule 59(e) motion to alter or amend
In Rowan v. McKnight, 184 W.Va. 763, 764, n.2, S.E.2d
780, 781, n.2 (1991) (per curiam), we noted in obiter dicta that
motions to reconsider do not ordinarily toll the period for appeal.
That decision was rendered on the basis of a Rule 60(b) motion
which does not toll the time for appeal. If a motion to reconsider
is filed and served within ten days of the entry of judgment then
that motion is a Rule 59(e) motion, and therefore tolls the period
for appeal. If the motion to reconsider is not filed or served
within ten days, then it shall be considered a Rule 60(b) motion
and the time for appeal runs from the entry of judgment in the
case. Any inference that Rowan v. McKnight somehow alters the
standard interpretation of Rule 59(e) is incorrect.See footnote 4
In this case, the motion to reconsider was filed and
served on 7 May 1990. This was before the judgment was even
entered on 26 April 1991; ergo, the motion was a Rule 59(e) motion
and the time for appeal was tolled under Rule 72 until the motion
to reconsider was denied on 30 July 1991. The four-month period
then commenced, and on 26 August 1991 the petition to this Court
was filed. We denied that first petition, and under Rule 7 of the
West Virginia Rules of Appellate Procedure the Bank renewed its
petition on 1 November 1991, which was within both the thirty-day
renewal notice period of Rule 7(b) of the West Virginia Rules of
Appellate Procedure and the four-month period following the denial
of the motion to reconsider. Therefore, this appeal is properly
before this Court.
Traditionally, the view of this Court was that "[a]
certificate of stock is not the stock itself, but is evidence of
its existence of ownership." Syllabus Point 5, Lipscomb v. Condon,
56 W.Va. 416, 49 S.E.2d 392 (1904). However, in adopting the
Uniform Commercial CodeSee footnote 5, the West Virginia Legislature sought to
increase the marketability of stocks and securities by allowing a
special type of party to rely on the security itself: the bona
fide purchaser. Thus, there is a big difference between an
ordinary purchaser and a bona fide purchaser.
Under W.Va. Code §46-8-301 , a transfer to a
purchaser gives the purchaser all the rights the transferor has
actual authority to convey. But under W.Va. Code §46-8-302 (3)
, a bona fide purchaser, in addition to acquiring the rights
of a purchaser, also acquires his interest free from any adverse
claim of which the bona fide purchaser was ignorant. A bona fide
purchaser is defined in W.Va. Code §46-8-302 (1)  as a
purchaser for value in good faith and without notice of any adverse
claim who takes delivery of a certificated security in bearer form
or in registered form, issued or indorsed to him or in blank. One
who takes by inheritance is not a bona fide purchaser for value;
neither is the recipient of a gift. Accordingly, neither Mr.
Lieving in his inheritance, nor the late Ms. Lieving, herself, was
entitled to the protection that a bona fide purchaser would receive
from the Uniform Commercial Code.
Without such protection, we must look to other law to
determine whether Ms. Lieving's interest was that of a joint tenant
with right of survivorship or a tenant in common. W.Va. Code , 36-1-19  and 36-1-20  articulate a strong statutory
presumption in favor of tenancies in common.See footnote 6 However, the statute
grants us the discretion not to exalt form over substance; for if
it is clear that survivorship was intended, then that is the
arrangement to which we should give effect. Carter v. Carter, 87
W.Va. 254, 104 S.E. 558 (1920). Although it is true that the
presumption of a tenancy in common must be overcome by clear and
convincing evidence, the exact intent of the parties is a material
fact that was not determined appropriately below.See footnote 7
When material facts are in controversy, summary judgment
is not appropriate:
A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.
Syl. Pt. 3, Aetna Casualty and Surety Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).See footnote 8
For the foregoing reasons, the judgment of the Circuit
Court of Wood County is reversed and the case is remanded for a new
Reversed and Remanded.
Footnote: 1In its own ledger, the bank has the following entries:
"1 1 84 Conversion UBTC Donna J. Tice B 136 100 shares";
"1 1 84 Conversion UBTC Roberta Lieving B 136 100 shares";
Footnote: 2The original judgment was entered on 26 April 1991.
Footnote: 3Rule 72 of the West Virginia Rules of Civil Procedure states:
The full time for filing a petition for appeal commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under Rule 50(b); or granting or denying a motion under rule 52(b) to amend or make additional findings of fact whether or not an alteration of the judgment would be required if the motion were granted; or granting or denying a motion under Rule 59 to alter or amend the judgment; or granting or denying a motion for a new trial under Rule 59. [Emphasis added]
Footnote: 4It is important to point out this Court's traditional approach to per curiam opinions. Per curiam opinions, such as Rowan, 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. A per curiam opinion that appears to deviate from generally accepted rules of law is not binding on the circuit courts, and should be relied upon only with great caution. 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: 5 Chapter 46 of the West Virginia Code.
Footnote: 6We recognize that the law defining the survivorship principles of joint tenancies, tenancies by the entirety and tenants in common are very old. At common law, when two (or more) people owned a piece of property in both of their names and all four unities existed (time, title, interest and possession), then they held as joint tenants with a right of survivorship. This often created traps for the unwary and forced many to go through straw transactions in order either to create or break the unities.
The legislature wanted to create a scheme based on the intent of
the parties as opposed to the common law unities. See Herring v.
Carroll, 171 W.Va. 516, 300 S.E.2d 629 (1983). First, the
legislature "outlawed" joint tenancies by abolishing the common law
rules in W.Va. Code 36-1-19 :
When any joint tenant or tenant by the
entireties of an interest in real or personal
property . . . shall die, his share shall
descent [sic] or be disposed of as if he had
been a tenant in common.
However, W.Va. Code 36-1-20  both modifies and probably
makes manifest the original legislative intent of W.Va. Code 36-1-19  by creating an exception that nearly swallows the Code
36-1-19 rule by allowing for joint tenancies with rights of
(a) The preceding section [§36-1-19] shall
not apply to any estate which joint tenants
have as executors or trustees, nor to an
estate conveyed or devised to persons in their
own right, when it manifestly appears from the
tenor of the instrument that it was intended
that the part of the one belong to the others.
Neither shall it affect the mode of proceeding
on any joint judgment or decree in favor of,
or on any contract with, two or more, one of
(b) When the instrument of conveyance or ownership in any estate, whether real estate or tangible or intangible personal property, links multiple owners together with the disjunctive "or," such ownership shall be held as joint tenants with the right of survivorship, unless expressly stated otherwise. [Emphasis added]
Analysis of these statutes show us that what we, in fact, have is a general default rule that all "joint tenancies" are to be treated as tenancies in common unless there is an explicit agreement as to the existence of the right of survivorship. We note that this statutory scheme badly needs rewriting by the Legislature into English that anybody can readily understand without a detailed knowledge of Anglo-American property law.
Footnote: 7We are led to wonder why Ms. Hadley and Ms. Tice would have voluntarily allowed their survivorship rights to be extinguished.
Footnote: 8Because we are reversing the summary judgment on other grounds, we need not address the estoppel issue raised by the Bank.