Lead Opinion
I.
FACTUAL AND PROCEDURAL HISTORY
On November 23, 1996, Mr. Covington, who was employed as a truck driver, was driving his tractor trailer on Interstate 64 in Raleigh County, West Virginia, when he was rear-ended by a vehicle driven by the appel-lee herein and defendant below, Michael John Smith [hereinafter referred to as “Mr.
As a result of this chain of accidents and his resultant injuries, Mr. Covington filed a claim for workers’ compensation benefits since the injuries he sustained were in the course of and as a result of his employment «duties. In conjunction with his workers’ compensation claim, Mr. Covington retained counsel in his home state of Alabama. The Covingtons also retained counsel, in Roanoke, Virginia,
Despite the protestations of the Coving-tons’ counsel, the circuit court, by order entered November 16, 2000, dismissed the Cov-ingtons’ lawsuit. Counsel communicated this dismissal to the Covingtons by letter dated November 30, 2000. Thereafter, Mr. Cov-ington, through his Alabama attorney, sent numerous letters to his Virginia counsel requesting a status report regarding the reinstatement of his lawsuit. Having received no response to any of his correspondences, Mr. Covington, by letter dated March 13, 2001, discharged his Virginia counsel. Thereafter, on April 4, 2001, the Covingtons retained their present West Virginia counsel to pursue the reinstatement of their lawsuit in the Circuit Court of Raleigh County.
On June 13, 2001, the Covingtons, by their West Virginia counsel, filed a motion to reinstate their lawsuit against Mr. Smith, et al. By order entered September 20, 2001, the circuit court found no good cause existed to reinstate the Covingtons’ ease and that its earlier ruling dismissing the аction, in accordance with W. Va. R. Civ. P. 41(b),
[i]t is undisputed that the Plaintiff [Mr. Covington] was not given the notice of dismissal that had been received by his attorney. Plaintiff was thereby deprived by his attorney of the opportunity to assist his attorney in the formulation of a response ....
It is readily apparent to the Court that the delay was caused by Plaintiffs former counsel and not by the Plaintiff. Plaintiff tried to get his counsel to attend to the matter, and his counsel neglected it, even to the point of not disclosing to his client that this Court had give[n] notice of an intent to dismiss.
This is not an instance where an otherwise attentive attorney let a case run past the Rule 41 year because of complications associated with the case. Rule 41 allows relief for that, upon a proper showing. This is rather a pattern of neglect, deceit, and misconduct by counsel upon his client that permeates the entire case.
The damage caused to the Plaintiff by this neglect is a matter between Plaintiff and his formеr counsel, to be resolved by the means appropriate to such disputes.
[T]his Court has the duty and responsibility to maintain proper attorney discipline and decorum within a case pending before it. That is accomplished by the requirement, enforced [by] the proper sanction, that an attorney attend properly to a case in which he [h]as accepted responsibility, or show good cause why he did not. Good cause for the delay, within the meaning of Rule 41 and the cases that interpret it, has not been shown in this case.
Following this adverse ruling, the Covingtons filed a motion for reconsideration on December 18, 2001,
II.
STANDARD OF REVIEW
The instant proceeding comes before this Court upon the Covingtons’ appeal from orders entered by the circuit court denying thеir request to reinstate their civil action and refusing their motion for reconsideration of the court’s adverse ruling. When a circuit
[a] motion to reinstate a dismissed action under the terms of Code, 56-8-12, is addressed to the sound discretion of the trial court, and, in the absence of a showing of abuse of that discretion, the action of the trial court upon such motion will not be disturbed upon writ of error. Higgs v. Cunningham,71 W.Va. 674 ,77 S.E. 273 [(1913) ].
Syl. pt. 1, Murray v. Roberts,
Despite the discretionary nature of such a determination, reinstatement is nevertheless proper where the moving party demonstrates the existence of good cause for such relief. “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 ... make a showing of good cause which adequately excuses his neglect in prosecution of the case.” Syl. pt. 1, in part, Brent v. Board of Trs. of Davis & Elkins Coll,
Similarly, a circuit court’s decision to grant or deny a motion for reconsideration under W. Va. R. Civ. P. 60(b) also warrants deferential review by this Court. “ A motion to vacate a judgment made pursuant to Rule 60(b), W. Va. R.C. P., is addressed to the sound discretion of the court and the court’s ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.’ Syl. Pt. 5, Toler v. Shelton
Mindful of these standards of review, we proceed to consider the parties’ arguments.
III.
DISCUSSION
On appeal to this Court, the Coving-tons complain that the circuit court improperly denied their motion to reinstate their
A. Propriety of Motion for Reinstatement after Party has Opposed Dismissal of Case
In his response to the Covingtons’ brief, Mi-. Forbis
The very presentation of an argument of this nature suggests that there exists a modicum of confusion as to the effect of our rulings in the Dim,on case. Before we revisit Dimon’s explication of the law on this point,
[a]ny court in which is pending an action wherein for more than one year there has been no order or proceeding, or wherein the plaintiff is delinquent in the payment of accrued court costs, may, in its discretion, order such action to be struck from its docket; and it shall thereby be discontinued.
W. Va. R. Civ. P. 41(b). Through the dismissal of such cases, courts are able to manage the eases on their dockets thereby promoting judicial economy and preserving the integrity of the judicial system. “The power to resort to the dismissal of an action is in the interest of orderly administration of justice because the general control of the judicial business is essential to the trial court if it is to function.” Dimon v. Mansy,
Despite this latitude accorded to circuit court judges, the parties affected by this method of case management are also afforded certain procedural protections to ensure that inactive cases are not perfunctorily dismissed when there exists good cause for such dilatoriness. “Before a court may dismiss an action under Rule 41(b), notice and an opportunity to be heard must be given to all parties of record.” Syl. pt. 2, in part, Dimon v. Mansy,
[i]n carrying out the notice and opportunity to be heаl’d requirements, before a case may be dismissed under Rule 41(b), the following guidelines should be followed: First, when a circuit court is contemplating dismissing an action under Rule 41(b), the court must first send a notice of its intent to do so to all counsel of record and to any parties who have appeared and do not have counsel of record. The notice shall inform that unless the plaintiff shall file and duly serve a motion within fifteen days of the date of the notice, alleging good cause why the action should not be dismissed, then such action will be dismissed, and that such action also will be dismissed unless plaintiff shall request such motion be heard or request a determination without a hearing. Second, any party opposing such motion shall serve upon the court and the opposing counsel a response to such motion within fifteen days of the service of such motion, or appear and resist such motion if it be sooner set for hearing. Third, if no motion is made opposing dismissal, or if a motion is made and is not set for hearing by either party, the court may decide the issue upon the existing record after expiration of the time for serving a motion and any reply. If the motion is made, the court shall decide the motion promptly after the hearing. Fourth, the plaintiff bears the burden of going forward with evidence as to good cause for not dismissing the action; if the plaintiff does come forward with good cause, the burden then shifts to the defendant to show substantial prejudice to it in allowing the case to proceed; if the defendantdoes show substantial prejudice, then the burden of production shifts to the plaintiff to establish that the proffered good cause outweighs the prejudice to the defendant. Fifth, the court, in weighing the evidence of good cause and substantial prejudice, should also consider (1) the actual amount of time involved in the dormancy of the case, (2) whether the plaintiff made any inquiries to his or her counsel about the status of the case during the period of dormancy, and (3) other relevant factors bearing on good cause and substantial prejudice. Sixth, if a motion оpposing dismissal has been served, the court shall make written findings, and issue a written order which, if adverse to the plaintiff, shall be appealable to this Court as a final order; if the order is adverse to the defendant, an appeal on the matter may only be taken in conjunction with the final judgment order terminating the case from the docket. If no motion opposing dismissal has been served, the order need only state the ground for dismissal under Rule 41(b). Seventh, if the plaintiff does not prosecute an appeal of an adverse decision to this Court within the period of time provided by our rules and statutes, the plaintiff may proceed under Rule 41(b)’s three-term rule to seek reinstatement of the case by the circuit court — with the time running from the date the circuit court issued its adverse order. Eighth, should a plaintiff seek reinstatement under Rule 41(b), the burden of going forward with the evidence and the burden of persuasion shall be the same as if the plaintiff had responded to the court’s initial notice, and a ruling on reinstatement shall be appealable as previously provided by our rule.
Syl. pt. 3, Dimon v. Mamy,
In spite of these explicitly detailed procedures, it is apparent that the actual application thereof to individual cases remains somewhat murky. The Forbis appellees construe this holding as requiring an aggrieved plaintiff to choose between two courses of action: (1) actively opposing the circuit court’s notice of intent to dismiss his/her case and, in response to such dismissal, appealing to this Court or (2) not responding to the circuit court’s notice of intent to dismiss his/ her case and, in response to such dismissal, filing a motion for reinstatement thereof. To support this position, Mr. Forbis cites no authority other than the language in Dimon which he has construed in this manner, and, indeed, we cannot find any.
The above-described procedure for dismissing cases pursuant to Rule 41(b) does not exist in a vacuum, however, as Mr. For-bis’ argument would seem to suggest. In addition to considering the methodology announced in Dimon, we must simultaneously be cognizant of the corresponding process whereby an aggrievеd plaintiff is permitted to request the reinstatement of his/her case. Both W. Va.Code § 56-8-12 and W. Va. R. Civ. P. 41(b) expressly permit a plaintiff whose case has been dismissed to move for its reinstatement:
The court may, on motion, reinstate on its trial docket any action dismissed under this rule, and set aside any nonsuit that may [be] entered by reason of the nonappearance of the plaintiff, within three terms after entry of the order of dismissal or nonsuit; but an order of reinstatement shall not be entered until the accrued costs are paid.
W. Va. R. Civ. P. 41(b). Accord W. Va.Code. § 56-8-12.
Construing together the dismissal procedures enunciated in Dimon with the reinstatement procedures set forth in W. Va. R. Civ. P. 41(b) and W. Va.Code § 56-8-12, we cannot reconcile these directives to reach the result urged by Mr. Forbis. We have long held that it is “the duty of this Court to avoid whenever possible a construction of a statute which leads to absurd, inconsistent, unjust or unreasonable results.” State v. Kerns,
To interpret our holding in Dimon as urged by Mr. Forbis would require us to completely ignore the corresponding procedure permitting an aggrieved plaintiff to seek reinstatement. Furthermore, neither statement of this procedure conditions its availability upon a plaintiffs agreement to sit idly by while the court rules adversely to him/her by following through on its intent to dismiss his/her lawsuit. See W. Va.Code § 56-8-12; W. Va. R. Civ. P. 41(b). Rather, we generally admonish parties who have not raised the proper objections that their failure to do so could result in the waiver of any objections they may have had to the lower court’s ruling. See, e.g., Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co.,
Finally, the interpretation urged by Mr. Forbis completely dismisses the syllabus point’s accompanying text. Immediately before uttering the sentence upon which Mr. Forbis bases his argument, we expressly held that “if the plaintiff does not prosecute an appeal of an adverse decision to this Court within the period of time provided by our rules and statutes, the plaintiff may proceed under Rule 41(b)’s three-term rule to seek reinstatement of the case by the circuit court[.]” Syl. pt. 3, in part, Dimon,
Applying this holding to the facts presently before us, we find that the fact that the Covingtons’ Virginia counsel filed a motion opposing the circuit court’s dismissal of their case did not preclude them from subsequently moving for reinstatement of their dismissed lawsuit. Because the Covingtons elected to move for the reinstatement of their ease rather than immediately pursuing an appeal, they were required to file their motion within three terms of the court’s entry of its dismissal order on November 16, 2000. Pursuant to the West Virginia Trial Court Rules, the terms of court for the Circuit Court of Raleigh County commence “on the second Monday in January, May, and September.” W. Va. Trial Ct. R. 2.10. As the Covingtons filed their motion for reinstatement on June 13, 2001, they satisfied the temporal requirement and timely filed their reinstatement motion. Accordingly, their subsequent appeal from the circuit court’s order disposing of said motion is properly before this Court.
B. Good Cause to Support Reinstatement of Dismissed Case
Having found that the Covingtons’ appeal is properly before us, we must now consider their argument that the circuit court erroneously denied them motion for reinstatement when they demonstrated good cause in support thereof. We previously determined that the Covingtons timely filed them reinstatement motion within three terms of the court’s entry thereof. For reinstatement to be granted, however, the Cov-ingtons must also demonstrate good cause to excuse the inactivity for which the circuit court deemed dismissal to be warranted.
“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 ease.” Syl. Pt. 1, Brent v. Board of Trustees of Davis & Elkins College,173 W.Va. 36 ,311 S.E.2d 153 (1983).
Syl. pt. 1, Dimon v. Mansy,
When determining whether an aggrieved plaintiff has demonstrated good cause sufficient to warrant the reinstatement of a dismissed case, the reviewing court must not only consider the plaintiffs evidence of good cause but also the defendant’s submissions regarding the substantial prejudice he/she
[T]he plaintiff bears the burden of going forward with evidence as to good cause for not dismissing the action; if the plaintiff does come forward with good cause, the burden then shifts to the defendant to show substantial prejudice to it in allowing the case to proceed; if the defendant does show substantial prejudiсe, then the burden of production shifts to the plaintiff to establish that the proffered good cause outweighs the prejudice to the defendant.
Syl. pt. 3, in part, Dimon,
[T]he court, in weighing the evidence of good cause and substantial prejudice, should also consider (1) the actual amount of time involved in the dormancy of the ease, (2) whether the plaintiff made any inquiries to his or her counsel about the status of the case during the period of dormancy, and (3) other relevant factors bearing on good cause and substantial prejudice.
Id. Accord Evans v. Gogo,
To assess whether a plaintiff has demonstrated good cause in a particular, case requires the reviewing court to conduct a factual inquiry.
Good cause is necessarily fact specific. Consequently, no rigid rule should be crafted to determine good causе.... [Hjowever, ... a threshold exists for what may be considered good cause. The “ ‘good cause’ requirement ... ‘is not a mere formality.’ ” State ex rel. Letts by Letts v. Zakaib,189 W.Va. 616 , 618,433 S.E.2d 554 , 556 (1993) (quoting Schlagenhauf v. Holder,379 U.S. 104 , 118,85 S.Ct. 234 , 242,13 L.Ed.2d 152 [, 163] (1964)). Establishing good cause “puts the burden on the party seeking relief to show some plainly adequate reason therefor[,j” not merely any reason. AT & T Communications of West Virginia, Inc. v. Public Serv. Comm’n of West Virginia,188 W.Va. 250 , 253,423 S.E.2d 859 , 862 (1992) (emphasis added) [ (internal quotations and citations omitted)]. Our jurisprudence has long “held that ... ‘good cause can only appear by showing ... some ... circumstance beyond the control of the party, and free from neglect on his part.” ’ Winona Nat’l Bank v. Fridley,122 W.Va. 479 , 481,10 S.E.2d 907 , 908 (1940) (quoting Syl. pt. 1, [in part,] Post v. Carr,42 W.Va. 72 ,24 S.E. 583 (1896)).
Plummer v. Workers’ Comp. Div.,
Under the facts of the ease sub judice, we find that the circuit court abused its discretion in finding that the Covingtons had not presented ample evidence to warrant the reinstatement of their case. This conclusion is not one we arrive at lightly. Only where we are left with a firm conviction that an error has been committed may we legitimately overturn a lower court’s discretionary ruling.
“Where the law commits a determination to a trial judge and his discretion is exercised with judicial balance, the decision should not be overruled unless the reviewing court is actuated, not by a desire to reach a different result, but by a firmconviction that an abuse of discretion has been committed.”
Intercity Realty Co. v. Gibson,
The extent of this discretionary authority, however, must be delimited with care, for there is always the unseemly danger of overreaching when the judiciary undertakes to define its own power and authority. Guided by this limitation, we have suggested that a circuit court’s sanction authority be a reasonable response to the problems and needs that provoked its use.... In other words, a court’s authority to issue dismissals as a sanction must be limited by the circumstances and necessity giving rise to its exercise. The sanction of dismissal with prejudice for the lack of pi'osecution is most severe to the private litigant and could, if used excessively, dis-serve the dignitary purpose for which it is invoked....
Because of the harshness of the sanction, a dismissal with prejudice should be considered appropriate only in flagrant cases. Indeed, we recognize that dismissal based on procedural grounds is a severe sanction which runs counter to the general objective of disposing cases on the merit....
Dimon,
Based upon the record presently before us, we are firmly left with the conviction that an error has been committed as we are not convinced that the inactivity in the instant proceeding was so egregious as to necessitate the sanction of dismissal. In its September 20, 2001, order denying reinstatement, the circuit court rеcounted the numerous measures the Covingtons undertook to stay abreast of the progress of their lawsuit:
The Plaintiffs [Mr. Covington’s] affidavit of June 6, 2001, shows that he attempted on numerous occasions to make inquiry of his former attorney [Virginia counsel], Wayne Inge, and to comply with his instructions. He participated in the discovery process and gave his deposition. Plaintiff attempted to contact his former attorney several times. He made 91 telephone calls from January of 1998 to November of 2000, in an effort to ascertain the status of his case- His former attorney returned only a dozen of those calls.
Plaintiff drove on two separate occasions from his home in Alabama to Mr. Inge’s law offices in Virginia to speak to him about the case. During one of those visits, Mr. Inge told Plaintiff that he had been very busy but assured him that the case “was moving along as it was supposed to be and he was going to get the case settled.”
Plaintiff was not notified by his former attorney until November 30, 2000 that the Court had filed a Notice of Intent to Dismiss on October 13, 2000, or had issued аn order dismissing the Plaintiffs’ case on November 16, 2000. Under Rule 41(b), before a court may dismiss an action, notice and opportunity to be heard must be given to all parties of record. That notice was communicated by the Court to Plaintiffs’ counsel, and not to Plaintiff.
After realizing that his attorney was not attempting to have his case reinstated, Plaintiff then discharged Mr. Inge and retained a new firm, Brown & Levicoff [present West Virginia counsel].
These measures undertaken by the Coving-tons are precisely what this Court contemplated in its articulation of the type of diligence expected of parties in the prosecution of their lawsuits:
[T]he determination [of] whether the plaintiff has failed to move’ the case in a reasonable manner is a discretionary call for the circuit court.... It is equally clear that it is the plaintiff’s obligation to move his or her case to trial, and where the plaintiff fails to do so in a reasonable manner, thecase may be dismissed as a sanction for the unjustified delay. To be clear, we squarely hold that a plaintiff has a continuing duty to monitor a case from the filing until the final judgment, and where he or she fails to do so, the plaintiff acts at his or her own peril.
Dimon,
[i]t is readily apparent to the Court that the delay was caused by Plaintiffs former counsel and not by the Plaintiff. Plaintiff tried to get his counsel to attend to the matter, and his counsel neglected it, even to the point of not disclosing to his client that this Court had give[n] notiсe of an intent to dismiss....
This is ... a pattern of neglect, deceit, and misconduct by counsel upon his client that permeates the entire case.
Although the appellees have indicated that they would be prejudiced by the reinstatement of this ease due to the passage of time, we cannot, in good conscience, find that such prejudice is so great as to outweigh the harm the Covingtons would suffer if the dismissal of their case were to stand. Accordingly, we reverse the contrary rulings of the Circuit Court of Raleigh County and remand this case for further proceedings consistent with this Opinion.
In closing, we wish to speak briefly on the inattentiveness of the Covingtons’ former counsel to the prosecution and maintenance of his clients’ lawsuit. As a general rule, attorneys serve as conservators or protectors of their clients’ legal rights and act to safeguard their clients’ interests. Correspondingly, clients entrust their attorneys with their legal well-being and expect their counsel to possess a certain degree of skill and proficiency in understanding and adhering to the law applicable to their particular case. See, e.g., Lawyer Disciplinary Bd. v. Friend,
Apart from this communication requirement, attorneys are also expected to demonstrate competency and diligence in the representation of them clients. See, e.g., W. Va. R. Profl Conduct 1.1 (“A lawyer shall provide competent representation to a client.”); Buckler v. Buckler,
“ ‘[t]he relationship of attorney-at-law and client is of the highest fiduciary nature, calling for the utmost good faith and diligence on the part of such attorney.’ Syllabus Point 4, Bank of Mill Creek v. Elk Horn Coal Corp.,133 W.Va. 639 ,67 S.E.2d 736 (1950).” Syllabus Point 2, Rodgers v. Rodgers,184 W.Va. 82 ,399 S.E.2d 664 (1990).
Syl. pt. 3, Committee on Legal Ethics of The West Virginia State Bar v. Cometti,
In light of these transgressions, errors, and omissions, we find it necessary to refer this matter to the Office of Disciplinary Counsel for further review, in accordance with our obligation to do so pursuant to Rule 8.3(a) of the West Virginia Rules of Professional Conduct and Canon 3D(2) of the Code of Judicial Conduct. See W. Va. R. Profl Conduct 8.3(a) (“A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”); W. Va.Code of Jud. Conduct Canon 3D(2) (“A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.”). See also Gum v. Dudley,
IV.
CONCLUSION
For the foregoing reasons, we reverse the orders entered September 20, 2001, and February 27, 2002, by the Circuit Court of Raleigh County, and remand this case for further proceedings consistent with this Opinion.
Reversed and Remanded.
. Where appropriate, Mr. and Mrs. Covington will also be referred to collectively as “the Cov-ingtons”.
. For the relevant text of Rule 41(b), see infra note 5.
. The Covingtons' Virginia counsel is not the same attorney who is representing them in the instant appeal to this Court.
. In pertinent part, Rule 41 (b) of the West Virginia Rules of Civil Procedure provides that
[a]ny court in which is pending an action wherein for more than one year there has been no order or proceeding ... may, in its discretion, order such action to be struck from its docket; and it shall thereby be discontinued. ... The court may, on motion, reinstate on Us trial docket any action dismissed under this rule, and set aside any nonsuit that may [be] entered by reason of the nonappearance of the plaintiff, within three terms after entry of the order of dismissal or nonsuit; but an order of reinstatement shall not be entered until the accrued costs are paid.
Before a court may dismiss an action under Rule 41(b), notice and an opportunity to be heard must be given to all parties of record.
. Aсtually, the West Virginia Rules of Civil Procedure do not permit a party to file a motion for reconsideration; instead, they allow a party to seek relief from a circuit court's order:
the West Virginia Rules of Civil Procedure do not recognize a “motion for reconsideration." This Court will consider a motion for reconsideration in one of two ways. If a motion is filed within ten days of judgment, the motion is treated as a motion to alter or amend judgment under Rule 59(e). Alternatively, if it is filed more than ten days after entry of judgment, we look to Rule 60(b) to provide the basis for analysis of the review.
Savage v. Booth,
[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or unavoidable cause; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant statutory relief in the same action to a defendant not served with a summons in that action, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, petitions for rehearing, bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
. W. Va.Code § 56-8-12 (1923) (Repl.Vol. 1997), the precursor to the reinstatement provisions contained in Rule 41 (b), instructs that
[a]ny 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 the order of nonsuit entered; but any such order of reinstatement shall not be entered until the accrued costs in such case shall have been paid.
Accord W. Va. R. Civ. P. 41(b) (same). See also Arlans Dept. Store of Huntington, Inc. v. Conaty,
. The Covingtons also assign error to the circuit court’s subsequent order denying their “reconsideration” motion. However, their appellate brief does not discuss this issue or provide authority to support their contention that the circuit court’s ruling was erroneous. In the absence of such supporting arguments or authority, we deem this assignment of error to have been waived. See State v. LaRock,
. "Mr. Forbis” will be used to refer collectively to the arguments advanced jointly by appellees Mr. Forbis; Ryder Truck Rental, Inc.; and D.T.F. Trucking, Inc.
Concurrence Opinion
concurring.
(Filed July 11, 2003)
The facts of this case are unfortunate: the plaintiffs case got dismissed because of the plaintiffs attorney’s inaction or procrastination. Through sloth, the attorney simply did not diligently prosecute the plaintiffs case. A frustrated circuit court dismissed the plaintiffs complaint, and chose to shift the burden for the plaintiffs losses from the potentially negligent tortfeasor to the slothful attorney.
The majority opinion aptly assesses the circuit court’s decision to dismiss the case under our existing abuse of discretion standards, and concludes that in this case the circuit court abused its discretion in not reinstating the plaintiffs complaint.
I write separately to address a legal position raised by the appellants in their briefs, but not discussed by the majority opinion. The appellants argued that this Court should adopt a rule such that an attorney’s inexcusable, extreme neglect, which is so severe that it amounts to positive misconduct, cannot
A problem that currently exists in the legal profession is that a lawyer who is most likely to “drop the ball” and fail to diligently prosecute a client’s case is also most likely to be unable, or simply not bother, to purchase legal malpractice insurance. The end result is that when a circuit court, like in this case, dismisses a case due to the lawyer’s inactivity, the client is left with recourse against a lawyer with few assets. In other words, the client ends up suffering.
California acknowledged this problem in the 1960s, and concluded that inaction and sloth by an attorney should not be grounds for a circuit court to inflict suffering upon an innocent client of the attorney, by dismissing the client’s case. In Daley v. County of Butte,
The court recognized the general rule— similar to that in this State — that the “general doctrine charges the client with the neglect of his attorney but gives him redress against the latter.”
... neglect was inexcusable and extreme, amounting to positive misconduct. [The attorney’s] consistent and long continued inaction was so visibly and inevitably disastrous, that his client was effectually and unknowingly deprived of representation. By his refusal to get on with the lawsuit or get out of it, [the plaintiffs attorney] inflicted severe damage on his client’s case. She had legal representation only in a nominal and technical sense.... Under these unusual circumstances, where the client was unknowingly deprived оf effective representation, she will not be charged with responsibility for the misconduct of her nominal counsel of record.
The court then stated the rule — known as the “positive misconduct” rule — that where an attorney’s inaction rises to a level of active, positive misconduct, the “attorney’s authority to bind his client does not permit him to impair or destroy the client’s cause of action.”
Clients should not be forced to act as hawklike inquisitors of their own counsel, suspicious of every step and quick to switch lawyers. The legal profession knows no worse headache than the client who mistrusts his attorney. The lay litigant enters a temple of mysteries whose ceremonies are dark, complex and unfathomable. Pretrial procedures are cabalistic rituals of the lawyers and judges who serve as priests and high priests. The layman knows nothing of their tactical significance. He knows only that his case remains in limbo while the priests and high priests chant them lengthy and arcane pretrial rites. He does know this much: that several yеars frequently elapse between the commencement and trial of lawsuits. Since the law imposes this state of puzzled patience on the litigant, it should permit him to sit back in peace and confidence without suspicious inquiries and without incessant checking on counsel.
The California Supreme Court adopted the positive misconduct rule stated in Daley in Carroll v. Abbott Laboratories, Inc.,
However, an exception to this general rule has developed. Excepted from this rule are those instances where the attorney’s neglect is of that extreme degree amounting to positive misconduct, and the person seeking relief is relatively free from negligence. The exception is premised upon the concept the attorney’s conduct, in effect, obliterates the existence of the attorney-client relationship, and for this reason his negligence should not be imputed to the client.
I agree with the majority’s decision to reinstate the plaintiffs’ claims in the instant case; I simply would have gone the extra step, and adopted the “positive misconduct” rule, so that in the future circuit courts will hesitate to punish innocent litigants for the procrastination of them attorneys.