654 S.E.2d 110
Appeal from the Circuit Court of Harrison County
Honorable John L. Marks, Jr., Judge
Civil Action No. 03-D-255-4
Submitted: September 19, 2007
Filed: October 26, 2007
The family court judge entered the Final Divorce Order on December 6, 2004,
incorporating by reference the October 4, 2004, letter. On January 3, 2005, just two days
prior to the lapse of the thirty-day appeal period, Mr. Washington retained Mr. Michael F.
Niggemyer, Esq., to represent him in appealing the Final Divorce Order to the Circuit Court
of Harrison County. On January 4, 2005, Mr. Niggemyer found that the October 4, 2004,
letter had not been filed in the court record and promptly notified opposing counsel. On
January 5, 2005, the October 4, 2004, letter was then filed in the court record. On January
6, 2005, Mr. Niggemyer filed an appeal on Mr. Washington's behalf with the circuit court.
The circuit court initially granted Mr. Washington's appeal and set a hearing for February 15, 2005. At this hearing, the circuit judge raised sua sponte the issue of the timeliness of the appeal, as the appeal was filed thirty-one days after the date of entry of the divorce decree, one day after the thirty-day appeal deadline. After the parties addressed the circuit court concerning the timeliness issue and provided follow-up correspondence, the circuit court, by order dated March 17, 2005, dismissed the appeal as untimely. This appeal followed. (See footnote 1)
Having thoroughly reviewed the record before us, we believe that one of the most critical facts to consider throughout our review is that Mr. Washington was in actual possession of a copy of the October 4, 2004, letter during the entire thirty-day appeal period. A copy of the letter was provided to him as soon as it was written and he does not argue that he did not have the letter in his possession during this time period. Another critical fact is that Mr. Washington waited until just two days prior to the lapse of the thirty-day appeal period, on January 3, 2005, to hire Mr. Niggemyer to represent him. On January 6, 2005, Mr. Niggemyer filed an appeal on Mr. Washington's behalf with the circuit court. Unfortunately, however, he failed to comply with West Virginia Rule of Practice and Procedure for Family Court Rule 28(a), which clearly provides that:
Time for petition. _ A party aggrieved by a final order of a
family court may file a petition for appeal to the circuit court no
later than thirty days after the family court final order was
entered in the circuit clerk's office. If a motion for
reconsideration has been filed within the time period to file an
appeal, the time period for filing an appeal is suspended during
the pendency of the motion for reconsideration.
While we do recognize that the October 4, 2004, letter should have been placed in the court record at the time it was written and presented to both parties, given the specific facts of this case, we find that any delay in filing the letter in the official court record was a harmless error at best. Harmless error, as described by Rule 61 of the West Virginia Rules of Civil Procedure, contemplates that:
no error or defect in any ruling . . . or in anything done . . . by
the court . . . is ground [sic] for granting a new trial or for setting
aside a verdict or for vacating, modifying or otherwise
disturbing a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice. The
court at every stage of the proceeding must disregard any error
or defect in the proceeding which does not affect the substantial
rights of the parties.
In this case, there is simply no evidence that Mr. Washington was deprived of access to the information he needed to draft a timely appeal to the circuit court. We believe that he simply missed the thirty-day appeal deadline which is a jurisdictional infirmity in West Virginia. We have explained that: 'Where the Legislature has prescribed limitations on the right to appeal, such limitations are exclusive, and cannot be enlarged by the court.' State v. De Spain, 139 W.Va. 854, [857,] 81 S.E.2d 914, 916 (1954). Syllabus Point 1, West Virginia Department of Energy v. Hobet Mining & Construction Co., 178 W.Va. 262, 358 S.E.2d 823 (1987).
In Carr, supra, we were troubled by the poor quality of the record in that case. We discussed our prior holding in Porter v. Bego, 200 W.Va. 168, 170 n. 2, 488 S.E.2d 443, 445 n. 2 (1997), where we stated:
It is the duty of a circuit clerk to maintain the completeness and
integrity of items in the court file. . . . However, we believe it
is the duty of the litigants to insure that all of the proper
documents find their way into the court file. . . . [W]e feel the
parties must bear the burden of creating a clear, concise record
for future review. Otherwise, future courts may issue confusing
and conflicting rulings, creating frustration for the parties and
leading to more appeals.
We further delineated in Carr that [t]he litigants, particularly in a domestic relations action that is likely to be the subject of future hearings, bear the burden of creating a clear, concise record for future review. 216 W.Va. at 476, 607 S.E.2d at 805.
In the instant case, as previously stated, Mr. Washington had the letter in his possession and we do not believe that its late arrival to the official court record had any impact on his ability to timely file his appeal. Moreover, even if Mr. Washington had not received the October 4, 2004, letter, he still had a burden which he failed to meet as the December 6, 2004, Final Divorce Order of the family court, which was in the record at all times, clearly stated:
For the purposes of appeal, this order is a final order.
Any party aggrieved by this order may appeal either to the
Circuit Court of Harrison County or the West Virginia Supreme
Court of Appeals. A petition to appeal to the Circuit Court may
be filed by either party within thirty days of the entry date of this
order. To appeal to the Supreme Court of Appeals directly, both
parties must file within 14 days of the entry date of this order, a
joint notice of intent to appeal and a waiver of right to appear to
the Circuit Court.
Mr. Washington's counsel did not follow the family court's explicit instructions as outlined in its December 6, 2004, order with regard to filing his appeal. Moreover, he does not explain the necessity for the October 4, 2004, letter to have been physically placed in the record in order for him to have properly filed an appeal to the circuit court in relation to the fact that his client actually had the letter in his possession at all times. We therefore affirm the circuit court's dismissal of Mr. Washington's petition for appeal as untimely filed.
Mr. Washington also argues that Ms. Washington unfairly benefitted from her counsel's neglect with regard to the October 4, 2004, letter not being immediately placed in the official court record. Due to the brevity of Mr. Washington's argument as it pertains to this issue, it is quoted in its entirety as follows:
Essentially, a party, especially one represented by counsel versus a pro se litigant, should not be permitted to benefit from one[']s own neglect, oversight[,] or error. This equates to invited error and it has been condemned by this Court. Roberts v. Consolidation Coal Co., 208 W.Va. 208, 539 S.E.2d 478 (2000).
In the instant case, [Ms. Washington] filed an incomplete
Order and now could stand to significantly benefit from that
In response to Mr. Washington's assertions that this is a case of invited error as discussed in Roberts, we have found no evidence to show that Ms. Washington's counsel did anything to cause the delay of the filing of the letter. Moreover, as discussed earlier in this opinion, we do not believe that Mr. Washington's right to appeal his case to the circuit court was prejudiced in any way given the specific facts of this case.
We further find no merit to Mr. Washington's claim that he was disadvantaged by the fact that he acted pro se for the majority of the proceedings in the various legal forums below. We have clearly recognized that [u]nder West Virginia Constitution Art. III, § 17, the right of self-representation in civil proceedings is a fundamental right which cannot be arbitrarily or unreasonably denied. Syllabus Point 1, Blair v. Maynard, 174 W.Va. 247, 324 S.E.2d 391 (1984). We have also advised that the trial court must 'strive to insure that no person's cause or defense is defeated solely by reason of their unfamiliarity with procedural or evidentiary rules.' Bego v. Bego, 177 W.Va. 74, 76, 350 S.E.2d 701, 703-704 (1986) (citing Blair v. Maynard, 174 W.Va. 247, 252-253, 324 S.E.2d 391, 395-396).
Having reviewed the record in its entirety, we do not believe Mr. Washington's rights were arbitrarily or unreasonably denied. Mr. Washington chose to proceed with this case pro se in spite of the family court's urging on numerous occasions that he obtain counsel. His decision not to obtain counsel for the majority of the proceedings was certainly his right. Nonetheless, there exists a line between accommodating a pro se litigant and advocating for a pro se litigant which courts cannot cross. As we have explained on numerous occasions, the trial court's approach should be one of balance. In that regard, we have stated that:
trial courts possess a discretionary range of control over parties
and proceedings which will allow reasonable accommodations
to pro se litigants without resultant prejudice to adverse parties. Pro se parties, like other litigants, should be provided the
opportunity to have their cases 'fully and fairly heard so far as
such latitude is consistent with the just rights of any adverse
party.' Conservation Commission v. Price, 193 Conn. 414, 479
A.2d 187, 192 n. 4 (1984). Blair v. Maynard, 174 W.Va. 247,
252, 324 S.E.2d 391, 396 (1984).
Herein, we believe that all reasonable accommodation was made to Mr. Washington on appeal to the circuit court. Mr. Washington, who was a local bail bondsman, clearly had some familiarity with the legal system. It is true that throughout the entire process Mr. Washington failed to answer any discovery requests by Ms. Washington's counsel and even failed to file an answer to the initial Complaint for Divorce. On the other hand, Mr. Washington did submit a proposal on the equitable distribution of the parties' assets and debts and submitted his parent education certificate. Moreover, he eventually did employ counsel who had in his possession a copy of the December 6, 2004, Final Divorce Order which clearly and unequivocally stated that he had thirty days to appeal that order.
In Maynard, we explained:
the court must not overlook the rules to the prejudice of any
party. The court should strive, however, to ensure that the
diligent pro se party does not forfeit any substantial rights by inadvertent omission or mistake. Cases should be decided on the merits, and to that end, justice is served by reasonably accommodating all parties, whether represented by counsel or not. This reasonable accommodation is purposed upon protecting the meaningful exercise of a litigant's constitutional right of access to the courts.
174 W.Va. 247, 253, 324 S.E.2d 391, 396 (1984). We see no evidence of any hindrance on the meaningful exercise of Mr. Washington's constitutional right of access to the courts either before or after he obtained counsel.
After thoroughly reviewing the record and considering all of the parties' arguments, we find no error with the circuit court's March 17, 2005, denial of Mr. Washington's petition for appeal. Thus, we affirm the circuit court's decision.