Kerner v. Affordable Living, Inc.

570 S.E.2d 571, 212 W. Va. 312, 2002 W. Va. LEXIS 94
CourtWest Virginia Supreme Court
DecidedJune 19, 2002
DocketNo. 30358
StatusPublished
Cited by6 cases

This text of 570 S.E.2d 571 (Kerner v. Affordable Living, Inc.) 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
Kerner v. Affordable Living, Inc., 570 S.E.2d 571, 212 W. Va. 312, 2002 W. Va. LEXIS 94 (W. Va. 2002).

Opinions

PER CURIAM.

This case is before this Court upon appeal of a final order of the Circuit Court of Ups-hur County entered on June 4, 2001. In that order, the circuit court denied a motion for relief from judgment filed pursuant to Rule 60(b) of the West Virginia Rules of Procedure by the appellant and defendant below, The Home Show-Buckhannon, Inc., in this wage collection action instituted by the ap-pellee and plaintiff below, Matthew Aaron Kerner. In this appeal, The Home Show-Buckhannon contends that the judgment against it is void, and therefore, the circuit court erred by not granting its Rule 60(b) motion.

This Court has before it, the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is affirmed.

I. FACTS

Matthew Aaron Kerner began working for the Buckhannon Home Show, Inc., on February 7, 1993. His employment was terminated for unsatisfactory work on March 30, 1994. On February 16, 1995, Kerner filed a wage claim against the Buckhannon Home Show seeking various commissions he had allegedly earned as a sales representative.

After Kerner instituted this civil action, the Buckhannon Home Show sold all of its assets at its Buckhannon, West Virginia location to a newly formed corporation known as The Home Show-Buckhannon, Inc. The majority stockholder of both corporations was Charles Crihfield.1 An asset purchase agreement was executed by the two corporations on January 2, 1996. Pursuant to that agreement, The Home Show-Buckhannon paid the Buckhannon Home Show $184,559.00 in cash for its assets at the Buck-hannon location and assumed its mobile home floor plan financing indebtedness to Bank One in Buckhannon. Thereafter, The Home Show-Buckhannon employed a new manager, reopened the Buckhannon sales lot, and proceeded to do business with the assets it purchased.

The Buckhannon Home Show remained in business at its other location in Clarksburg, West Virginia. In May 1996, Crihfield, and the co-owner of the business, James Smith, sold them stock in the Buckhannon Home Show to Jay Murphy for $10,000. Subsequently, Murphy changed the name of the Buckhannon Home Show to Affordable Living, Inc. An appropriate notice of change of name was filed in the instant civil action, and the named defendant was reformed to “Affordable Living, Inc., formerly known as the Buckhannon Home Show, Inc.”

On January 13, 1997, Affordable Living entered into a stipulation for entry of judgment with Kerner. Pursuant to that stipulation, Kerner was granted a judgment against “Affordable Living, Inc., formerly known as the Buckhannon Home Show, Inc.,” in the amount of $17,500.00. Despite several attempts to collect this judgment, Kerner was unable to do so.2 Thus, in August 2000, Kerner filed a motion in the circuit court requesting that the name of the defendant in the ease be reformed to “Affordable Living, Inc., formerly known as the Buckhannon Home Show, Inc., now known as The Home Show-Buckhannon, Inc.”

[314]*314On September 5, 2000, the circuit court held a hearing on Kerner’s motion. Following that hearing, the circuit court granted the motion in an order dated September 19, 2000, which stated, in pertinent part:

[T]he Judgement previously entered by the Court on January IS, 1997 against Affordable Living, Inc, formerly known as the Buckhannon Home Show, Inc., in the amount of Seventeen Thousand Five Hundred Dollars ($17,500.00) plus interest at the legal rate until satisfied is hereby reformed and said Judgement is now to ran from the date of its original entry against each of the following entities: Buckhannon Home Show, Inc.; Affordable Living, Inc. and The Home Show-Buckhannon, Inc.

Subsequently, The Home Show-Buckhan-non filed an appeal with this Court. The petition for appeal was .denied on April 5, 2001. On May 10, 2001, The Home Show-Buckhannon filed a Rule 60(b) motion for relief from judgment with the circuit court. The motion was denied and another appeal was filed with this Court. In September 2001, this Court again denied the appeal. Thereafter, The Home Show-Buckhannon filed an amended petition renewing its petition for appeal. Following an oral presentation of the amended petition for appeal to this Court on February 5, 2002, the appeal was granted.

II. STANDARD OF REVIEW

As discussed above, The Home Show-Buckhannon appeals an order denying its motion for reconsideration filed pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure.3 In Syllabus Point 5 of Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974), this Court held that “[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.” With this standard in mind, we now address the issue in this case.

Mistakes; Inadvertence; Excusable Neglect; Unavoidable Cause; Newly Discovered Evidence; Fraud, etc. — On 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) tire 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.

III. DISCUSSION

In Syllabus Point 3 of Toler, supra, this Court held that “[a]n appeal of the denial of'a Rule 60(b) motion brings to consideration for review only the order of denial itself and not the substance supporting the underlying judgment nor the final judgment order.” Thus, the sole issue before this Court is whether the circuit court abused its discretion by denying the Rule 60(b) motion filed by The Home Show-Buckhannon.

In Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196 W.Va.

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Bluebook (online)
570 S.E.2d 571, 212 W. Va. 312, 2002 W. Va. LEXIS 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerner-v-affordable-living-inc-wva-2002.