William C. Garrett
Gassaway, West Virginia
Attorney for the Appellees
Daniel R. Schuda
Marc B. Lazenby
Steptoe & Johnson
Charleston, West Virginia
Attorneys for the Appellant
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
"Under W.Va.R.Civ.P. 41(b), in order to reinstate a cause of
action which has been dismissed for failure to prosecute, the
plaintiff must move for reinstatement within three terms of entry
of the dismissal order and make a showing of good cause which
adequately excuses his neglect in prosecution of the case." Syl.
Pt. 1, Brent v. Board of Trustees of Davis & Elkins College, 173
W. Va. 36, 311 S.E.2d 153 (1983).
This matter is before this Court on certified questions from
the Circuit Court of Braxton County. The lower court submits the
1. Does this Court have jurisdiction to reinstate on the trial docket a civil action dismissed without prejudice for failure to prosecute on February 28, 1991, pursuant to a Motion filed June 10, 1993?
2. Did this Court properly exercise its discretion by reinstating this matter to the trial docket based upon the Appellees' [Plaintiffs'] Motion in light of the presentation and arguments of counsel as reflected in the record of the hearing held on the matter?
We conclude that the discretion of the lower court was
improperly exercised in granting the motion for reinstatement in
A civil action for personal injuries arising from a 1986
automobile accidentSee footnote 1 was filed on August 26, 1988, in the Circuit
Court of Braxton County by Plaintiffs Arlie Rollyson and Nellie
Rollyson against Defendant Frederick Rader, Jr. Although the Defendant filed a timely answer, the Plaintiffs did not pursue
their claim, and, on February 28, 1991, the case was dismissed
without prejudice for failure to prosecute.
On June 10, 1993, twenty-seven months after the dismissal,
the Plaintiffs filed a motion pursuant to Rule 60(b) of the West
Virginia Rules of Civil Procedure to reinstate the case on the
following grounds: (1) the Plaintiffs are represented by new
counsel; (2) the Plaintiffs have a viable cause of action which
should be decided by a jury; (3) the Plaintiffs' former attorney
failed to inform them that their case had been dismissed and had
they been so informed, they would have taken action to protect their interests; and (4) Plaintiff Arlie Rollyson died on April 8, 1992, and Plaintiff Nellie Rollyson, his wife, is the executrix of his estate.
At an October 8, 1993, hearing on the issue of
reinstatement, the lower court granted the Plaintiffs' motion for
reinstatement but also certified the above-referenced questions
to this Court.
West Virginia Code § 56-8-12 (1966) provides as follows:
Any court may, on motion, reinstate on the trial docket of the court any case dismissed, and set aside any nonsuit that may be entered by reason of the nonappearance of the plaintiff, within three terms after the order of dismissal shall have been made, or order of nonsuit entered; but any such order shall not be entered until the accrued costs in such case shall have been paid.
Likewise, Rule 41(b) of the West Virginia Rules of Civil Procedure provides that the court may, on motion, reinstate a case within three terms after the entry of the order of dismissal. In the present case, the lower court entered the dismissal order on February 28, 1991, and the motion for reinstatement was filed on June 10, 1993, seven terms of court following the entry of the dismissal order.See footnote 2
In Arlan's Department Store of Huntington, Inc. v. Conaty,
162 W. Va. 893, 253 S.E.2d 522 (1979), we discussed the time
limitation imposed upon motions to reinstate and recognized that
"[i]f a party fails to comply with the time periods contained in
the rules, he may suffer adverse consequences including the loss
of his case." 162 W. Va. at 898, 253 S.E.2d at 526. We also
emphasized in syllabus point 1 of Brent v. Board of Trustees of
Davis & Elkins College, 173 W. Va. 36, 311 S.E.2d 153 (1983),
that a case may be reinstated only upon the satisfaction of two separate requirements:
Under W.Va.R.Civ.P. 41(b), in order to reinstate a cause of action which has been dismissed for failure to prosecute, the plaintiff must move for reinstatement within
three terms of entry of the dismissal order and make a showing of good cause which adequately excuses his neglect in prosecution of the case.
173 W. Va. at 37, 311 S.E.2d at 154, syl. pt. 1.
Our exhaustive analysis in Brent provides ample rationale
for the limitation on reinstatement. Brent explains that Rule
41(b) permits reinstatement within three terms of court but does
not "dispense with a showing of good cause in order for the
plaintiff to be entitled to reinstatement." Id. at 39, 311
S.E.2d at 157.
The Plaintiffs in the present case did not satisfy the first
requirement, having allowed twenty-seven months to elapse between
the entry of the dismissal order and the motion for
reinstatement. Under certain limited circumstances, an exception
may be justified and a court may reinstate a case in which the
three-term rule was not observed. For instance, we held in Brent
that where a dismissal order is derived through "fraud, accident,
or mistake," a court could reinstate the matter after expiration
of the three-term period. 173 W. Va. at 40, 311 S.E.2d at 157.
We also explained in Brent that a plaintiff may prevail in
his attempt to have a case reinstated after the expiration of
three terms of court if he establishes that notice of the entry
of the dismissal order for failure to prosecute was not provided
as contemplated by Rule 77(d) of the West Virginia Rules of Civil
Procedure. Id. at 41, 311 S.E.2d at 159. Rule 77(d) provides
that the clerk of the court shall serve by mail a notice of the
entry of the order upon every party affected thereby. J.W.
Morris, Braxton County Circuit Court Clerk, certified on the
Dismissal Order that a copy of the Dismissal Order in the present
case was sent to counsel for both Plaintiffs and Defendant. The
Plaintiffs contend that their former attorney did not receive
notice, and that even if the did, he did not inform them of such
notice. However, this issue is not determinative in this appeal
since, as we noted in Brent, not every "dismissal order entered
without notice automatically entitles the aggrieved part to
reinstatement. Good cause must still be established to explain
the delay in prosecution of the case which led to dismissal in
the first instance." Id.
Due to the Plaintiffs' failure to satisfy the first
prerequisite for the reinstatement, we need not extensively
address the issue of good cause for reinstatement. We do emphasize, however, that even if we were convinced that the
failure to move for reinstatement within the required three terms
should be excused, we are not persuaded that good cause exists to
now permit the Plaintiffs to reactivate their civil action. As
stated above, to reinstate a case dismissed for failure to
prosecute, a plaintiff must prove not only that reinstatement was
requested within three terms of court but also that good cause
for reinstatement exists.
In Evans v. Gogo, 185 W. Va. 357, 407 S.E.2d 361 (1990), we
addressed a request for reinstatement by a plaintiff in a medical
malpractice case. The request was premised upon the withdrawal
of out-of-state counsel and the concomitant delay in prosecution
allegedly occasioned by that withdrawal. Id. at 358, 407 S.E.2d
at 362. We held that the determination of whether the lower
court abused its discretion in denying reinstatement must include
an examination of "the reasons given for the delay, and the
possible prejudicial effect of the delay on the defendants." Id.
at 359, 407 S.E.2d at 363.See footnote 3
In the present case, the Plaintiffs have presented no
justification for their failure to prosecute this matter from September 14, 1998, to its dismissal on February 28, 1991, and
they have presented less than adequate explanation of their
inaction between the dismissal and the motion to reinstate filed
on June 10, 1993.
In addition to examining reasons for delay, the prejudicial
effect of the delay upon the Defendant must also be evaluated.
The accident which forms the basis of the claim occurred over
eight years ago, one Plaintiff is now deceased, and any witnesses
who could be located would expectedly have difficulty in
accurately recalling the details of the accident.
As we noted in Arlan's, the application of the procedures
for the orderly process of civil cases and the imposition of time
limitations may produce harsh results. 162 W. Va. at 898, 252
S.E.2d at 526. A plaintiff whose case is dismissed for failure
to prosecute is provided with ample opportunity - - three terms
of court - - to move for reinstatement of his case. Absent
evidence of fraud, accident, or mistake, failure to move for
reinstatement within three terms will result in the refusal to
reinstate the matter on the court docket. Given the failure of
the Plaintiffs in the present case to request reinstatement
within three terms of court, it was error for the lower court to
reinstate the case on its trial docket.
Certified Questions Answered,
Footnote: 1The underlying accident occurred on October 1, 1986, when the Plaintiffs' automobile was involved in a collision with an automobile driven by the Defendant.
Footnote: 2Pursuant to the former West Virginia Code § 51-2-1(n) (1981), in effect at the time this matter arose, the terms of court for Braxton County began on the first Monday in February, June, and October. West Virginia Code § 51-2-1(n) was repealed in 1991.
Footnote: 3The reinstatement in Evans was requested two days after the dismissal order was entered, thus satisfying the requirement that the reinstatement be requested within three terms of court. 185 W. Va. at 358, 407 S.E.2d at 362.