Thomas F. Basile v. The Calwell Practice, LLC, 16-0117

Background

After allocation of contingency fees in a Logan County personal-injury case was adjusted (55% Calwell; 31% Ford; 14% Basile), Basile demanded $40,000 from The Calwell Practice under a December 9, 2010 agreement promising up to $40,000 if Basile’s share was increased and Ford failed to pay.
Calwell refused pending finality of the Logan County order; West Virginia Supreme Court affirmed the Logan County allocation on June 8, 2012, and Basile then re-demanded payment.
Basile sued Calwell in Kanawha County (Aug. 1, 2012) for breach of contract and fraudulent inducement after Calwell did not pay; Calwell filed for declaratory relief/ injunction that Basile accept payment from Ford or had been paid.
The circuit court dismissed Calwell’s declaratory/injunctive motion as moot after Basile accepted $74,504.86 from Ford; it denied Basile’s Rule 11 sanctions motion and later dismissed Basile’s amended complaint for failure to state viable claims.
Basile’s post-judgment motions (labeled Rule 59(e)/Rule 60(b)) were untimely in several instances; he appealed multiple orders but the Supreme Court limited review to the January 6, 2016 denial of his Rule 60(b) motion and dismissed/affirmed as appropriate.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Appealability/timeliness of appeals	Basile sought review of multiple circuit-court orders entered 2013–2015	Calwell asserted appeals were untimely or not properly before the Court	Appeals of Nov. 6, 2013; Mar. 11, 2014; and Jun. 23, 2015 orders dismissed for lack of jurisdiction (untimely)
Denial of Rule 60(b) relief	Basile argued the dismissal should be disturbed; moved under Rule 60(b)	Calwell argued dismissal and prior rulings were correct; relief unwarranted	Affirmed denial of Rule 60(b) — court found no abuse of discretion and that Basile merely sought to re-litigate issues
Merits of breach/fraud claims	Basile alleged Calwell breached the $40,000 promise and fraudulently induced him; also alleged confidentiality breach and conspiracy	Calwell argued the agreement did not allow double recovery (collect $40,000 then sue Ford), Basile had already accepted full payment from Ford, confidentiality claim defeated by public filing, and fraud was duplicative of contract claim	Circuit court properly dismissed substantive claims for failure to state a claim; dismissal affirmed (on procedural posture, Rule 60(b) denial reviewed only)
Rule 11 sanctions request	Basile sought sanctions against Calwell for filing declaratory/injunctive motion	Calwell argued its motion was reasonable given uncertainty about payments and possible recovery from Ford	Denial of Rule 11 sanctions upheld; court found motion not frivolous and later dismissal of declaratory relief was due to mootness after Ford payment

Key Cases Cited

James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (W.Va. 1995) (court has duty to examine its own appellate jurisdiction)
Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (W.Va. 1974) (denial of Rule 60(b) appealability and Rule 60(b) does not toll appeal period)
Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196 W.Va. 692, 474 S.E.2d 872 (W.Va. 1996) (Rule 60(b) motions that re-litigate underlying legal issues are without merit)
Forshey v. Jackson, 222 W.Va. 743, 671 S.E.2d 748 (W.Va. 2008) (a Rule 12(b)(6) dismissal may consider exhibits attached to the complaint)
Hobet Mining & Constr. Co. v. W. Va. Dept. of Energy, 178 W.Va. 262, 358 S.E.2d 823 (W.Va. 1987) (failure to file timely appeal is a jurisdictional defect)
State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (W.Va. 1996) (who drafts an order is immaterial; court considers whether findings reflect law and record)
Henderson v. Shinseki, 562 U.S. 428 (U.S. 2011) (appellate courts have an independent duty to examine jurisdiction)