1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Jessica Tennille Limer

, Plaintiff Below, Petitioner

vs. ) No. 21

- 10 30 ( Raleigh County 19

- C

- 312 )

Raleigh County Community Action

Association

, Defendant Below, Respondent



### MEMORANDUM DECISION

Petitioner Jessica Tennille Limer appeals the circuit court’s December 2 , 2021, order denying her motion for relief from the court’s October 26, 2021

, order grant ing summary judgment in respondent’s favor on petitioner’s claims for wrongful termination and intentional infliction of

emotional distress

. 1 Upon our review, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate. See W. Va. R. App. Proc.

21.

Respondent is an organization that, through federal grants and private donatio ns, provides services to Raleigh County, West Virginia, residents, including children, aimed at attaining self

sufficiency. 2 In January of 2018, p etitioner was employed as respondent’s housing director when a coworker, respondent’s executive director, inf ormed petitioner that allegations of child abuse and neglect had been levied against her (the coworker)

. Knowing that petitioner was an approved foster parent, the coworker requested that petitioner take custody of her children, which petitioner did. Respo ndent remained unaware of the ensuing abuse and neglect proceeding until the West Virginia Department of Health and Human Services contacted respondent and informed it that the allegations had been substantiated. As a result, the coworker was no longer eligible for employment by respondent

, and r espondent terminated the coworker’s employment

. F ollowing an internal investigation that revealed petitioner’s knowledge of but failure to report the abuse and neglect allegations , respondent also terminated petitioner’s employment. See W. Va. Code § 49

- 2

- 803 (outlining reporting requirements for individuals mandated to report suspected child abuse and neglect).

1 Petitioner appears by counsel David A. Kirkpatrick , and respondent appears by counsel Kevin J. Robinson and Chip E. Williams

.

2 For example, respondent maintains a homeless shelter , provides a head start program

, and

offers housing, transportation, and mentoring services. 

### FILED January 18, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 Petitioner sued respondent, claiming wrongful termination in violation of a substantial public policy 3 and intentional infliction of emotional distress. Following discovery, the circuit court granted summary judgment in favor of respondent

. P etitioner filed a motion for relief from judgment under Rule 60(b) of the West Virginia Rules of Civil Procedure, wh ich the court denied on December 2, 2021. 4 Petitioner filed her notice of appeal with this Court on December 23, 2021

, and her case was perfected on April 4, 2022.

In her brief, petitioner asserts that she is appealing from both the circuit court’s order granting respondent summary judgment and its order denying petitioner’s motion for relief from judgment. 5 We consider first the appeal of the order granting respond ent’s motion for summary judgment

. As noted above, that order was entered on October 26, 2021, and petitioner perfected her appeal on April 4, 2022. Under Rule 5(f) of the West Virginia Rules of Appellate Procedure, “[u]nless otherwise provided by law, an appeal must be perfected within four months of the date the judgment being appealed was entered [ in the office of the circuit clerk, ] ” and West Virgi nia Code § 58

- 5

- 4 likewise requires, in part, that “[n]o petition shall be presented for an appeal from any judgment rendered more than four months before such petition is filed with the clerk of the court where the judgment being appealed was entered.” “‘ A motion made pursuant to Rule 60(b), W.Va.R.C.P., does not toll the running of the appeal time . . . . Syl. Pt. 1, Toler v. Shelton , 157 W.Va. 778, 204 S.E.2d 85 (1974).” Syl. Pt. 1, Law v. Monongahela Power Co. , 210 W. Va. 549, 558 S.E.2d 349 (2001). Bec ause p etitioner’s appeal from the court’s summary judgment order was not perfected within the four

- month window, it is not timely

. We have said, “ W hen presented with untimely appeals under W.Va. Code , 58

- 5

- 4 [], this Court has consistently held that the st atute is jurisdictional and that failure to file a timely appeal presents a jurisdictional infirmity precluding the court from accepting the appeal.” W. Va. Dep’t of Energy v. Hobet Mining & Constr. Co. , 178 W. Va. 262, 264, 358 S.E.2d 823, 825 (1987) (cit ations omitted). Accordingly, this Court lacks jurisdiction to consider petitioner’s appeal of the summary judgment order.

3 Petitioner argued that once she started fostering the children , she was required to keep the information about the abuse and neglect proceeding confidential and that , therefore, a public policy existed in this state favoring the confidentiality of that information

.

4 Technically, petitioner filed a “Motion to Reconsider Order Granting Defendant’s Motion for Summary Judgment,” but “ [a] ‘motion to reconsider’ is not recognized under our Rules of Civil Procedure.” Syl. Pt. 3, in part, Malone v. Potomac Highlands Airport Auth. , 237 W. Va. 235, 786 S.E.2d 594 (2015). “When a party filing a motion for r econsideration does not indicate under which West Virginia Rule of Civil Procedure it is filing the motion, . . . [i]f the motion is filed outside

the ten

- day limit [for moving to alter or amend a judgment under Rule 59(e)], it can only be

addressed under Rule 60(b).” Syl. Pt. 2, in part, Powderidge Unit Owners Ass’n v. Highland Props., Ltd. , 196 W. Va. 692, 474 S.E.2d 872 (1996). The circuit court, accordingly, properly construed petitioner’s motion as one for relief from judgment under Rule 60(b).

5 In h er notice of appeal, petitioner lists the date of entry of judgment as December 2,

2021

— the date on which the court denied relief under Rule 60(b). This Court’s scheduling order consequently identifies the December 2, 2021, order as the final order from wh ich petitioner “presented a timely and complete notice of appeal.”3 O nly the circuit court’s order denying petitioner relief under Rule 60(b) is properly before

this Court

, as the appeal of this order was timely perfected

. We observe 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.” Toler

, 157 W. Va. at 784, 204 S.E.2d at 89

. And o ur review of th e court’s order denying relief under Rule 60(b) is deferential. Id. at 778, 204 S.E.2d at 86, Syl . Pt. 5 (“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.”)

.

In addressing petitioner’s motion for relief from judgment , the circuit court found that petitioner was attempting to “relitigate determined issues” and that petitioner’s “ newly discovered

evidence ” was cumulative and not capable of changing its summary judgment ruling. Further, the court found that petitioner had failed to “cite an y rule or case law in support of the request within

the motion itself.” On appeal, petitioner does not address the court’s rulings at all. Rather, petitioner’s eight assignments of error raise challenges exclusively to the court’s summary judgment order. W e have recognized that “Rule 60(b) motions which seek merely to relitigate legal issues heard at the underlying proceeding are without merit

. ” Powderidge , 196 W. Va. at 705, 474 S.E.2d at 885

. Additionally, “newly discovered evidence” “must be material, ad missible, credible, not merely cumulative or impeaching , and likely to change the outcome upon retrial” to warrant setting aside a judgment

. Phillips v. Stear , 236 W. Va. 702, 716, 783 S.E.2d 567, 581 (2016) (emphasis added) (quoting Peacock v. Bd. of Sch. Comm’rs , 721 F.2d 210, 213

- 14 (7th Cir. 1983)). We determine that the circuit court accurately evaluated petitioner’s motion, and accordingly, we conclude th at the court did not abuse its discretion by den ying petitioner relief from its judgment.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: January 18, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison Justice C. Haley Bunn

DISQUALIFIED :

Justice William R. Wooton