Smith v. Beckley Water Co.

1

Harvey Smith, Plaintiff Below, Petitioner v. Beckley Water Company, Inc., Defendant Below, Respondent

No. 22-0044

Supreme Court of Appeals of West Virginia

April 5, 2023

(Raleigh County CC-41-21-C-54)

MEMORANDUM DECISION

Petitioner Harvey Smith appeals the order of the Circuit Court of Raleigh County, entered on January 12, 2022, denying his "Rule 59(e) Motion to Alter or Amend Judgment and/or 60(b) Motion for Relief from Judgment or Order and Affirming Grant of Defendant's Motion for Summary Judgment." Respondent Beckley Water Company, Inc. ("the water company") was the defendant below.^[1] Upon our review we determine that oral argument is unnecessary and that a memorandum decision is appropriate. See W.Va. R App. Proc. 21.

The Procedural History

Mr Smith filed his complaint on February 26, 2021. He alleged that a broken water line near his home caused a leak that damaged a driveway and sidewalk on his property. He asserted that the water company repaired the water line and assured him that its representative would contact him to initiate property repairs, but that the water company neither contacted him nor returned his calls. Based on his allegations that the water company negligently maintained its water line, Mr. Smith demanded reparation for property damage and annoyance and inconvenience.

To address the complaint, the water company filed a motion for summary judgment, arguing that Mr. Smith's claim is barred by the applicable statute of limitations.^[2] In support, it attached the company's record of Mr. Smith's report of damage, as well as an affidavit from a water company engineer attesting that the issue was resolved by repair on February 7, 2019, and there were no damaged water lines in the vicinity of Mr. Smith's home after that date.

The circuit court entered an order affording Mr. Smith a period to respond to the water company's motion for summary judgment, but Mr. Smith failed to file a response. The court subsequently granted the motion for summary judgment upon finding that Mr. Smith had notice of his potential claim on February 7, 2019, but did not file his complaint until February 26, 2021, after the expiration of the two-year statute of limitations.

Fifteen days after the entry of the circuit court's order granting summary judgment, Mr. Smith filed a "Rule 59(e) Motion to Alter or Amend Judgment and/or 60(b) Motion for Relief from Judgment or Order" ("the first motion") and asked the circuit court to set aside its summary judgment order and allow him an opportunity to file a response to the water company's motion for summary judgment because, he explained, his counsel did not receive the motion for summary judgment. The circuit court permitted Mr. Smith to file a late response. However, it did not specifically order its grant of summary judgment set aside but, instead, held Mr. Smith's first motion in abeyance pending the receipt of his response to the summary judgment motion.

Mr. Smith filed his response to the summary judgment motion five days later. By affidavit, he asserted that the water line break occurred in late March or early April of 2019, and that he continued to suffer property damage several months after the water company worked on the water line. He also argued that the water company's affidavit addressed a leak at an address which is "downhill" from his property, and further argued that the water company's documents are not reliable. He disputed that the water company completed repairs and he attached photos to show that the property remains damaged. Mr. Smith argued that further discovery was required because factual disputes remain.

After reviewing Mr. Smith's response to the water company's motion for summary judgment, the circuit court found that the evidence presented in Mr. Smith's affidavit did not rebut the affidavit and documents supporting the water company's motion for summary judgment. The court, thus, denied Mr. Smith's motion for post-judgment relief and "affirmed" the earlier grant of summary judgment to the water company.

Mr. Smith then filed a second "Rule 59(e) Motion to Alter or Amend Judgment and/or 60(b) Motion for Relief from Judgment or Order" ("the second motion"), reiterating the arguments of his first motion. The circuit court considered the second motion filed pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure, and it noted that all of Mr. Smith's arguments supporting the motion were previously considered. The circuit court denied the second motion.

Analysis

Mr. Smith asserts eight assignments of error on appeal.^[3] Seven of these assignments of error directly relate to the circuit court's treatment of respondent's motion for summary judgment. Before addressing those, we must first cross the threshold matter of Mr. Smith's post-judgment motions, because it is necessary to define the nature of the order on appeal to determine the standard of review.

After the circuit court entered its order granting summary judgment Mr. Smith filed (several months apart) two motions styled "Rule 59(e) Motion to Alter or Amend Judgment and/or 60(b) Motion for Relief from Judgment or Order." We refer to these, as noted above, as "the first motion" and "the second motion." Though Mr. Smith failed to distinctly identify in each motion the rule under which he requested relief (as many litigants do, notwithstanding our repeated cautions), the distinction is critical.

Rule 59(e) and Rule 60 provide for different motions directed to similar ends. Rule 59(e) governs motions to "alter or amend" a judgment. Rule 60, which is divided into two distinct but important sections, governs requests for relief from a judgment or order for various listed reasons. Rule 59(e) generally requires a lower threshold of proof than does Rule 60(b), but each motion seeks to erase the finality of a judgment and to allow further proceedings. Rule 59(e) contains a strict ten-day limit, while Rule 60(b) allows an eight-month period, sometimes more. We establish a bright-line rule for distinguishing Rule 59(e) motions from Rule 60(b) motions. The time of a motion's service controls whether a motion challenging a judgment is a Rule 60(b) or Rule 59(e) motion. Such a motion, if served within ten days of a final judgment is a Rule 59(e) motion. Conversely, a motion served more than ten days after a final judgment is a Rule 60(b) motion.

This bright-line rule simplifies treatment of the motions. The rule reduces the confusion often caused when movants haphazardly title and characterize motions asking that a judgment be reopened. It makes decisions easier for both judges and litigants and, because Rule 59(e) tolls the time period for appeal, which Rule 60(b) does not, it makes it easier for an appellate court to be sure when it has jurisdiction over an appeal. Of course, the substantive standards of the two rules still differ. Our discussion only addresses which rule applies.

Savage v. Booth, 196 W.Va. 65, 68 n.5, 468 S.E.2d 318, 321 n.5 (1996).

As noted above, Mr. Smith filed his first motion fifteen days after the circuit court entered its order granting summary judgment. However, our review of the calendar dates relevant to the filings contained in the appendix record on appeal reveals that the first motion was filed on the tenth business day after entry of the summary judgment order. The first motion, therefore, was governed by Rule 59(e) of the West Virginia Rules of Civil Procedure. The circuit court ultimately denied the first motion, but nevertheless granted relief when it permitted Mr. Smith's belated response to respondent's motion for summary judgment. After receiving the responsive pleading, the circuit court entered its order denying the first motion.

The nature of the second motion, however, is less clear. The circuit court, without analysis, summarily described the second motion as a Rule 60(b) motion. The second motion was filed seventeen days after the circuit court's denial of the first motion, but within ten business days of the circuit court's denial of the first motion. It is on this basis, it seems, that Mr. Smith argues, in his eighth assignment of error, that the circuit court erred when it ruled that the second motion "was filed late." We interpret this argument to be that the circuit court erred in treating the second motion as one governed by Rule 60(b) of the West Virginia Rules of Civil Procedure, when it should have treated it as governed by Rule 59(e) and, thus, required a "lower threshold of proof." See Savage, 196 W.Va. at 68 n.5, 468 S.E.2d at 321 n.5. Respondent concedes this point.

We however, are not persuaded by the argument or the concession. Mr. Smith argues that the circuit court improperly calculated the time between the denial of the first motion and the filing of the second motion. But he fails to acknowledge that the second motion was filed more than four months after the circuit court entered its order granting summary judgment to respondent.^[4] The circuit court held its consideration of the first motion in...