Covington v. Smith

582 S.E.2d 756, 213 W. Va. 309
CourtWest Virginia Supreme Court
DecidedJuly 11, 2003
Docket30734
StatusPublished
Cited by37 cases

This text of 582 S.E.2d 756 (Covington v. Smith) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Covington v. Smith, 582 S.E.2d 756, 213 W. Va. 309 (W. Va. 2003).

Opinions

DAVIS, Justice:

The appellants herein and plaintiffs below, James Milton Covington [hereinafter referred to as “Mr. Covington”] and Jeraldine I. Covington [hereinafter referred to as “Mi-s. Covington”],1 appeal from orders entered September 20, 2001, and February 27, 2002, by the Circuit Court of Raleigh County. In its September 20, 2001, order, the circuit court refused the Covingtons’ motion to reinstate their lawsuit that it previously had dismissed due to inactivity pursuant to Rule, 41(b) of the West Virginia Rules of Civil Procedure.2 By subsequent order, entered February 27, 2002, the circuit court denied the Covingtons’ motion to reconsider3 its September 20, 2001, ruling. On appeal to this Court, the Covingtons claim that the circuit court erred by refusing to reinstate their ease when there existed good cause to do so. Upon a review of the parties’ arguments, the pertinent authorities, and the record presented for appellate consideration, we reverse the rulings of the Circuit Court of Raleigh County. In sum, we find that the Covingtons demonstrated good cause to support the reinstatement of their lawsuit. Accordingly, we remand this case for further proceedings consistent with this 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. [314]*314Smith”]. Immediately following this collision, Mr. Covington parked his vehicle on the shoulder of the interstate and proceeded to retrieve and erect emergency markers around his truck. While doing so, Mr. Cov-ington’s truck was hit by a second vehicle, which was driven by the second appellee herein and defendant below, Walter Lee For-bis [hereinafter referred to as “Mr. Forbis”], which caused Mr. Covington to sustain severe personal injuries.

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,4 to file a lawsuit against Mr. Smith, Mr. Forbis, and associated parties, which suit was filed in the Circuit Court of Raleigh County on September 21, 1998. Throughout 1999, Mr. Forbis’ counsel deposed various witnesses and filed a motion to compel the production of certain documents. Mr. Covington’s attorney deposed defendants Smith and Forbis in August, 1999. Apart from these discovery matters, it appears that the Covingtons’ lawsuit remained dormant until the circuit court filed, on October 13, 2000, a notice of its intent to dismiss the action due to such inactivity. Although the Covingtons’ counsel received this notice, he failed to inform the Covingtons of the pending dismissal proceedings. On October 31, 2000, the Covingtons’ counsel filed a motion alleging the existence of good cause and requesting the court to refrain from dismissing the matter. Among the reasons cited for the delay, counsel indicated that a telephonic scheduling conference had been scheduled for August 15, 2000, but miscommunications between the parties led to its cancellation. Counsel also explained that he had been unable to devote much time to the Covingtons’ lawsuit because he had been engaged in jury trials, in unrelated matters, in February, 2000, and May, 2000, and had had a death in his family in October, 2000.

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 action, in accordance with W. Va. R. Civ. P. 41(b),5 due to inactivity was proper. In short, the circuit court ruled that

[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 ....
[315]*315It 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 former 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, 2001,6 based upon this Court’s decision in Hoioerton v. Tri-State Salvage, Inc., 210 W.Va. 233, 557 S.E.2d 287 (2001) (per curiam). In its February 27, 2002, order, the circuit court again denied the Covingtons’ request for relief and determined that this Court’s decision in Howerton was factually distinguishable from the circumstances surrounding the dismissal of the Covingtons’ lawsuit. From these rulings of the circuit court, the Covingtons appeal to this Court.

II.

STANDARD OF REVIEW

The instant proceeding comes before this Court upon the Covingtons’ appeal from orders entered by the circuit court denying their request to reinstate their civil action and refusing their motion for reconsideration of the court’s adverse ruling. When a circuit [316]

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Cite This Page — Counsel Stack

Bluebook (online)
582 S.E.2d 756, 213 W. Va. 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/covington-v-smith-wva-2003.