Submitted: January 11, 1995
Filed: February 17, 1995
David R. Karr
Ravenswood, West Virginia
Attorney for Appellees
JUSTICE CLECKLEY DELIVERED the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
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.
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 of what has been determined.
4. Rule 59(e) of the West Virginia Rules of Civil
Procedure provides the procedure for a party who seeks to change or
revise a judgment entered as a result of a motion to dismiss or a
motion for summary judgment.
5. "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 with ten days of entry of judgment." Syllabus Point 1,
Lieving v. Hadley, 188 W. Va. 197, 423 S.E.2d 600 (1992).
6. "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." Syllabus Point 2, Lieving v. Hadley, 188
W. Va. 197, 423 S.E.2d 600 (1992).
7. 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.
This case is brought pro se by the plaintiffs below and
appellants herein, James M.B. and Lawrence E.B.See footnote 1 The plaintiffs
appeal the June 30, 1994, order of the Circuit Court of Jackson
County, which granted a motion to dismiss the plaintiffs' action
against the defendants below and appellees herein, Carolyn M. and
William M. Subsequently, on July 7, 1994, the plaintiffs filed a
"motion for reconsideration" with the circuit court. The circuit
court did not rule on this motion prior to the plaintiffs' filing
a notice of an intent to appeal the June 30, 1994, order to this
Court. As a result of the pending motion, we find the petition for
appeal was improvidently granted and this appeal must be dismissed.
It is, of course, axiomatic that 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.
Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S. Ct. 42, 53 L.Ed. 126 (1908). As occurred in this case, where neither party
to an appeal raises, briefs, or argues the 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, it is irrelevant that the
parties have not disputed jurisdiction. Accordingly, we address as
a threshold matter whether there is an appealable order in this
Under W. Va. Code, 58-5-1 (1925), appeals only may be
taken from final decisions of a circuit court. Parkway Fuel
Service, Inc. v. Pauley, 159 W. Va. 216, 219, 220 S.E.2d 439, 441
(1975) ("W. Va. Code, 58-5-1, permits a party to a controversy to
obtain an appeal . . . when the matter in controversy exceeds three
hundred dollars and a final judgment has been entered." (Emphasis
added)). 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[.]"
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). The requirement
of finality has been called "'an historic characteristic of . . .
appellate procedure.'" Flanagan v. United States, 465 U.S. 259,
263, 104 S. Ct. 1051, 1053-54, 79 L.Ed.2d 288, 293 (1984), quoting
Cobbledick v. United States, 309 U.S. 323, 324, 60 S. Ct. 540, 541,
84 L.Ed. 783, 785 (1940). Pertinent here, 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." St. Louis, Iron Mountain &
Southern R.R. Co. v. Southern Express Co., 108 U.S. 24, 28-29, 2 S.
Ct. 6, 8, 27 L.Ed. 638, 639 (1883).See footnote 2
With rare exception, the "finality rule" is mandatory and
jurisdictional. Thus, to be appealable, an order must be final as
discussed above, must fall within a specific class of interlocutory
orders which are made appealable by statute or by the West Virginia
Rules of Civil Procedure,See footnote 3 or must fall within a jurisprudential exception.See footnote 4 It is manifest that none of the exceptions to the
final judgment rule remotely applies in this case; therefore, our
discussion will address only whether there is a final appealable
In the present case, the circuit court granted the
defendants' pretrial motion to dismiss and entered an order to that
effect on June 30, 1994. Rather than take an immediate appeal, the
plaintiffs, within ten days of the circuit court's order, filed a
"motion for reconsideration."See footnote 5 We now must determine what effect,
if any, does the filing of a "motion to reconsider" have on a
party's right to appeal and the jurisdiction of this Court to
entertain such an appeal prior to the circuit court's ruling on
this motion.See footnote 6
The West Virginia Rules of Civil Procedure authorize
several post-trial or post-judgment motions. They are: a motion
for judgment notwithstanding the verdict (j.n.o.v.) under Rule
50(b); a motion to amend the findings on which a judgment is based
where a case is tried to a judge without a jury under Rule 52(b) or
a motion to amend or alter a judgment under Rule 59(e); and a motion for a new trial under Rule 59(a) and (b). By their plain
terms, the motion for a new trial and the motion for j.n.o.v. apply
only to jury trials; thus, they are not applicable to this case.
In cases tried to a judge without a jury, a motion similar to a
motion for a new trial may be used to set aside or revise the
judgment. Therefore, Rule 59(e)See footnote 7 is applicable to situations where
a party seeks to alter, amend, or revise a judgment that was
entered as a result of a pretrial motion.See footnote 8 More specifically,
Rule 59(e) provides the procedure for a party who seeks to change
or revise a judgment entered as a result of a motion to dismiss or
a motion for summary judgment.
Although a "motion to reconsider" is nowhere explicitly
authorized in the West Virginia Rules of Civil Procedure, it has been said to be a legitimate procedural device.See footnote 9 In the present
case, the "motion to reconsider" was filed within the ten-day
period required for motions under Rule 59; therefore, for the
reasons discussed below, we proceed as if it was a timely filed
request for relief under Rule 59(e).
Our decision to treat the "motion to reconsider" under
Rule 59(e) is controlled by Lieving v. Hadley, 188 W. Va. 197, 423
S.E.2d 600 (1992). In Lieving, we quoted Paragraph 59.12 at
265-64 of 6A James W. Moore & Jo D. Lucas, Moore's Federal Practice
(June 1989), which states:
"'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 [the] judgment and tolls the time [to] 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.'" 188 W. Va. at 200, 423 S.E.2d at 603. (Emphasis added and footnotes omitted in Lieving).
In Lieving, we concluded the reasoning behind the federal practice
was sound and adopted the federal practice of considering "motions
for reconsideration" as motions made under Rule 59(e) of our Rules
of Civil Procedure.See footnote 10
Specifically, we stated in Syllabus Points 1 and 2 of
"1. 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.
"2. 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
Thus, in West Virginia, a "motion for reconsideration"See footnote 11 filed
within ten days of judgment being entered suspends the finality of
the judgment and makes the judgment unripe for appeal.
Furthermore, 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.See footnote 12
Application of these principles of appellate review
produces a result entirely consistent with, and perhaps required by
W. Va. Code, 58-5-1. As previously mentioned, the plaintiffs filed
the "motion for reconsideration" within ten days of the circuit
court's order. Applying Syllabus Points 1 and 2 of Lieving, we
determine the plaintiffs' "motion for reconsideration" is actually
a Rule 59(e) motion to alter or amend the judgment. Therefore, we
find that, because the circuit court never ruled on the motion, the
June 30, 1994, order is not a final, appealable judgment. A
judgment is final only when a court hands down a judgment couched
in language calculated to conclude all claims before it. We have no authority to consider an appeal except as previously discussed.See footnote 13
With no finality of the judgment, this Court has no authority to
review the merits of this case.See footnote 14
For the foregoing reasons, this case is dismissed without
prejudice.See footnote 15
Footnote: 1 The merits of this case involve a paternity action. Although we do not discuss the merits of the case in this opinion, we continue to protect the identity of the individuals involved by following our traditional practice of not using last names to avoid stigmatizing the parties. See State v. Derr, W. Va. , S.E.2d (No. 22101 11/18/94); In the Matter of Browning, W. Va. , S.E.2d (No. 21863 11/18/94).
Footnote: 2 The "finality rule" preserves the autonomy of the trial court by minimizing appellate interference, ensuring that the role of the appellate court will be one of review rather than one of intervention. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1225, 93 L.Ed. 1528, 1536 (1949). It furthers efficiency by providing there only will be review where the record is complete and the judgment pronounced. Flanagan v. United States, 465 U.S. at 263-64, 104 S. Ct. at 1054, 79 L.Ed.2d at 293. It preserves integrity and emphasizes the importance of the harmless error doctrine by prohibiting review until an appellate court can determine whether a claimed trial error was harmless. Finally, in the civil context, the rule reduces the ability of litigants to wear down their opponents by repeated, expensive appellate proceedings.
Footnote: 3 This Court may 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. A writ of prohibition sought pursuant to W. Va. Code, 53-1-1 (1923), "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 it legitimate powers." See also State ex rel. Allen v. Bedell, W. Va. , S.E.2d (No. 22359 12/9/94) (Cleckley, J., concurring). This Court also may answer certified questions that are brought from circuit courts pursuant to W. Va. Code, 58-5-2 (1967), and from federal courts or appellate courts in other states pursuant to W. Va. Code, 51-1A-1 (1976). Moreover, this Court may entertain judgments that are made under Rule 54(b). Rule 54(b) applies to judgments in cases involving multiple parties or claims and provides, in part:
"[T]he 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. In the absence of
such determination and direction, any order
or other form of decision, however
designated, which adjudicates fewer than all
the claims or the rights and liabilities of
fewer than all the parties shall not
terminate the action as to any of the claims
or parties, and the order or other form of
decision is subject to revision at any time
before the entry of judgment adjudicating all
the claims and the rights and liabilities of
all the parties."
The rationale behind this rule is to prevent a party from experiencing hardship or injustice as a result of delay by forcing a party to wait until a final judgment is rendered as to all claims and parties. See Durm v. Heck's, Inc., 184 W. Va. 562, 401 S.E.2d 908 (1991).
Footnote: 4 The "collateral order" doctrine was set forth by the United States Supreme Court in Cohen, supra. In Durm, 184 W. Va. at 566 n.2, 401 S.E.2d at 912 n.2, we noted the doctrine as an exception to the federal interpretation of Rule 54(b), and we said that under Cohen "[a]n interlocutory order would be subject to appeal under this doctrine if it '(1) conclusively determines the disputed controversy, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.' Thompson [v. Betts], 754 F.2d [1243,] 1246 [(5th Cir. 1985)]." (Citations omitted in Durm).
Footnote: 5 It must be emphasized that motions to reconsider or to amend or alter the judgment upon a Rule 59(e) motion are not necessary to preserve the right of appeal. As we stated in Parkway Fuel, 159 W. Va. at 219, 220 S.E.2d at 441, "[t]hese remedies exist concurrently with and independently of the remedy of appeal, and failure to apply for such relief does not affect the appealability of a final judgment."
Footnote: 6 The right of pro se plaintiffs to petition this Court for an appeal cannot be effectively denied by the circuit court's failure to act promptly on post-judgment motions. Circuit courts have the authority to adopt local rules requiring all motions to be brought to its attention before or immediately after filing. Considering that trial judges usually do not reach a decision in the first place until their conclusion is firm, unless the post- judgment motion presents some factual or legal matter that earlier had not been adduced, the issues raised on these motions are ripe for quick resolution.
Footnote: 7 Rule 59(e) of the West Virginia Rules of Civil Procedure provides: "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: 8 A case may be decided by a judge without a jury in two separate situations:
"One occurs when a question of law is posed
at the pretrial stage that is determinative
of the action and that may be resolved
without a trial of factual issues going to
the merits. Such a situation arises, for
example, when a party moves for dismissal for
lack of jurisdiction or for summary judgment
on the ground that no genuine issue of fact
is involved. The other situation occurs when
issues of fact are tried to the court without
Fleming James, Jr., Geoffery C. Hazard, Jr., John Leubsdorf, Civil Procedure § 12.3 at 646 (4th ed. 1992).
Footnote: 9 Pro se pleadings and motions are held to less stringent standards than those drafted by lawyers. Haines v. Kerner, 404
U.S. 519, 92 S. Ct. 594, 30 L.Ed.2d 652 (1972); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, 439 U.S. 970, 99 S. Ct. 464, 58 L.Ed.2d 431 (1978). Allegations, however inartfully pleaded, are sufficient to call for an opportunity to offer supporting evidence, unless it is "'beyond doubt'" that the claimant could prove no set of facts entitling him to relief. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L.Ed.2d 263, 268 (1972), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957).
Footnote: 10 Ordinarily, an order dismissing a case pursuant to a motion to dismiss or a motion for summary judgment is a ruling on the merits and constitutes an effective termination of all proceedings before the circuit court making the case appealable. However, a Rule 59 motion technically reopens the case. In Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S. Ct. 987, 103 L.Ed.2d 146 (1989), for instance, the United States Supreme Court held that a post-judgment motion for discretionary prejudgment interest constituted a motion to alter or amend the judgment, as contemplated by Rule 59(e). Consequently, a notice of appeal filed before the disposition of the motion was ineffective.
Footnote: 11 We again emphasize our warning in Lieving, 188 W. Va. at 201, 423 S.E.2d at 604, that it is confusing when motions do not fall clearly within a particular rule. In addition, "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 judgment.'" See also Graf v. West Virginia University, 189 W. Va. 214, 218, 429 S.E.2d 496, 500 (1992).
Footnote: 12 For a general treatment of post-trial motion procedure, see David E. Herr, Roger S. Haydock, and Jeffrey W. Stempel, Motion Practice §§ 22, 23 (2nd ed. 1990).
Footnote: 13 In some instances, departure from our appellate rules has been indulged. Although this Court may construe the statute liberally in determining whether it has been complied with, we may not waive jurisdictional requirements even for "good cause shown" in pro se cases. Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 108 S. Ct. 2405, 2409, 101 L.Ed.2d 285, 291 (1988).
Footnote: 14 Based on the record presented to this Court, neither the parties nor the circuit court gave any serious consideration as to whether the joinder of the children, who arguably would benefit from the plaintiffs' proposal, is necessary as required by Rule 19 of the West Virginia Rules of Civil Procedure. The circuit court must make such a determination of this issue on the record. A necessary party is one whose interest could be so impaired or adversely affected by the outcome that he or she must be included as a plaintiff or defendant unless there is a valid excuse for their nonjoinder. See Dixon v. American Indus. Leasing Co., 157 W. Va. 735, 205 S.E.2d 4 (1974). See generally 3A James Wm. Moore, Federal Practice and Procedure ¶¶ 19.01-19.07 (1994); 7 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d §§ 1601-1611 (1986).
Footnote: 15 As we have noted, the circuit court has not ruled on the "motion for reconsideration." When the circuit court does rule, the plaintiffs may then appeal if the motion is denied. Rule 72 of the West Virginia Rules of Civil Procedure controls the time frame for filing a petition for appeal when a Rule 59 motion is made. Rule 72 states, in relevant part: "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 under Rule 59 to alter or amend the judgment[.]"