No. 33599 -John S. Guido v. Kendra M. Guido (now Gray)
Albright, Justice, dissenting:
I respectfully dissent from the majority opinion. The Appellant's request to
reinstate his appeal of the family court's order should have been granted. In denying the
motion to reinstate, the circuit court found that the Appellant, acting pro se, had failed to
satisfy the requirements of West Virginia Code § 51-2A-11(b) regarding a certificate of
service attached to the Petition for Appeal. In this appeal, the Appellant maintains that his
failure to complete the certificate of service was the consequence of an honest mistake and
did not result in any actual prejudice to any other party. The majority affirms the circuit
court's decision, reasoning that the absence of the certificate of service invalidated the
petition and deprived the circuit court of its jurisdiction.
This Court frequently encounters claims that technical violations of rules or
statutes invalidate claims or deprive appellate courts of jurisdiction. Consistency regarding
the evaluations and results of such challenges has been deplorably lacking. This Court has
most generally framed the paradigm for evaluation upon whether the violated statute was
directive or mandatory in nature. West Virginia Human Rights Commn. v. Garretson
W.Va. 118, 468 S.E.2d 733 (1996). However, this Court has repeatedly admitted that there
is no authoritative checklist for determining whether a statute is directive or mandatory. Id.
at 126, 468 S.E.2d at 741. (See footnote 1)
Thus, the analysis has become cloaked with the troubling aura
, this Court analyzed West Virginia Code § 5-11A-13(o)(1)
(1992), providing as follows: If an election is made under subsection (a) of this section, the
authorize, and not later than thirty days after the election is made the
Attorney General shall
commence and maintain, a civil action. . . . (emphasis supplied).
This Court found such statute directive rather than mandatory. Thus, the Garretson
found that the violation of the statute did not affect jurisdiction to entertain an underlying
housing discrimination claim, as long as the delay was not prejudicial to the rights of a party. (See footnote 2)
The Garretson Court also noted that [t]he purpose of the time limit is to allow the parties
an opportunity to gather evidence while facts are still fresh and to motivate parties to
diligently pursue their claims. 196 W.Va. at 122 n. 3, 468 S.E.2d at 737 n. 3.
In the present case, the articulation of the statute at issue is very similar to the Garretson
statute. The statute in this case utilizes the term must and, like the Garretson
statute, also fails to specify a particular consequence of the failure to adhere to the provision,
thereby creating a presumption that the statute is directive. See Garretson
, 196 W.Va. at 126,
468 S.E.2d at 741. Yet, the majority in this case renders an entirely different ultimate
conclusion, and the Appellant loses his day in court.
While not relating to the impact of a statutory provision, this Court's decision
regarding the nature of a magistrate court rule in Frank P. Bush, Jr. & Associates, L.C. v.
215 W.Va. 599, 600 S.E.2d 311 (2004), is also instructive. In appealing a
magistrate court judgment, a timely filing of an appeal bond on a form prepared by this Court
was deemed sufficient to constitute the required notice of appeal for purposes of the rule
requiring a notice of appeal to be filed. The Hammer
scenario is also analogous to the
present case to the extent that the appellant in that case, acting pro se, relied upon
information provided to him by magistrate court personnel that no additional written
documents were necessary to file his appeal. The Hammer
Court relied upon this Court's
prior decision in Wolfe v. Welton
, 210 W.Va. 563, 558 S.E.2d 363 (2001). In that case, this
Court stated that upon the filing of the bond and payment to the magistrate court of the
circuit court filing fee, [an] appeal [is] properly commenced. 210 W.Va. at 569, 558 S.E.2d
With regard to the precise technical violation in this case, it is interesting to
note that the circuit court order denying the Appellant's petition for appeal was entered
twenty days after the Appellant filed his petition for appeal. The Appellant was not provided
with any opportunity to correct the defect, and his motion for reinstatement was denied.
Even within the context of the filing of a complaint, Rule 4(k) of the West Virginia Rules of
Civil Procedure provides a litigant with a period of 120 days in which to serve the summons
and complaint. In this case, the Appellant's failure to serve a petition for appeal within 20
days was deemed proper cause for complete denial of his right to appeal an adverse
The lack of precision with regard to the evaluation of challenges to technical
deficiencies has long plagued this Court. In Gaines v. Hawkins,
153 W.Va. 471, 170 S.E.2d
676 (1969), the majority held that held that the litigant's failure to provide a bond to the clerk
of the Common Pleas Court within the statutory time frame deprived the court of jurisdiction
even though the litigant had provided the bond to the clerk of the Circuit Court as required
by the order granting the appeal. Ironically, the clerk of the Circuit Court was also the clerk
of the Common Pleas Court. It is the dissent to that decision that provides the most
illuminating insight. Judge Calhoun disagreed with the majority's holding of the deprivation
of jurisdiction and opined that the majority had sacrificed substance, justice and reason for
the sake of a slavish adherence to empty technicality. 153 W.Va. at 476, 170 S.E.2d at 679
(Calhoun, J., dissenting). Recognizing that some statutory time periods are indeed non-
negotiable prerequisites to appellate jurisdiction, Judge Calhoun explained that the majority
had placed a mere procedural irregularity in the same harsh category. In making this
decision, the Court has not paused to consider whether the procedural irregularities involved
in this case were matters of substance or whether the rights of a party have been prejudiced
. at 478-79, 170 S.E.2d at 680.
Likewise, the majority in the present case has failed to pause to properly
consider, and the rights prejudiced by this decision are those of the Appellant. Ultimately,
the majority's conclusion in this case is flawed. The consequence is the unfair denial of a
litigant's opportunity to address the merits of his case. The majority is utilizing the existence
of a technical violation to deny these rights based upon the supposition that the Appellant's
children were denied support. Yet, the Appellant has attempted to forward claims of error
in the family court litigation, and those attempts have been thwarted by this ill-conceived
The majority's error in this case is compounded by the fact that the circuit clerk
was actually assisting this pro se litigant, and the absence of formal rigid compliance with
the certificate of service process was the result of this litigant's reliance upon that advice.
In this vein, the majority asserts that the Appellant's status as a pro se litigant is of no
moment, allegedly due to the Appellant's extensive experience in litigation of this matter.
That conclusion hardly comports with this Court's longstanding approach to the rights of pro
se litigants. This Court has long held that non-lawyer, pro se litigants generally should not
be held accountable for all of the procedural nuances of the law. Hammer
, 215 W.Va. at
603, 600 S.E.2d at 315 (Davis, J., concurring).
When a litigant chooses to represent himself, it is the duty of the
trial court to insure fairness, allowing reasonable
accommodations for the pro se litigant so long as no harm is
done an adverse party. . . . Most importantly, 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.
State ex rel. Dillon v. Egnor, 188 W.Va. 221, 227, 423 S.E.2d 624, 630 (1992) (internal
quotations and citations omitted).
Based upon the foregoing, I respectfully dissent.
I am authorized to state that
Justice Starcher joins in this separate opinion.