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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Carl Lehman Co.,

Plaintiff Below, Petitioner

vs.) No. 18-0294 (Ohio County 13-C-354)

William G. Thoms,

Defendant Below, Respondent

MEMORANDUM DECISION

Petitioner Carl Lehman Co., by counsel Frank X. Duff, appeals the Circuit Court of Ohio

County’s March 19, 2018, order denying its motion to reinstate the matter on the court’s docket. 

Respondent William G. Thoms made no appearance. On appeal, petitioner argues that the circuit 

court erred in denying its motion to reinstate, in light of the fact that petitioner never received a 

copy of the order dismissing the case and because it previously filed a motion opposing dismissal.

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This Court has considered the brief and the record on appeal. The facts and legal arguments 

are adequately presented, and the decisional process would not be significantly aided by oral 

argument. Upon consideration of the standard of review, the brief, and the record presented, the 

Court finds that the circuit court erred in finding that it lacked jurisdiction to reinstate petitioner’s 

civil complaint. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the 

West Virginia Rules of Appellate Procedure, and a memorandum decision is appropriate to reverse

and remand the matter.

In October of 2013, petitioner filed a complaint against respondent alleging that respondent 

owed petitioner approximately $14,000 in landscaping fees. In November of 2013, respondent 

filed an answer and counterclaims for breach of contract and negligence. In December of 2013, 

petitioner filed a reply to respondent’s counterclaims. Thereafter, no additional orders or filings 

were entered on the matter’s docket sheet until 2016.

 

1On appeal, petitioner additionally alleges that the circuit court erred in failing to hold a 

hearing prior to the dismissal of this matter under Rule 41(b) of the West Virginia Rules of Civil 

Procedure. However, the order on appeal relates to the circuit court’s denial of petitioner’s motion 

to reinstate the matter on jurisdictional grounds. Because the Court is reversing that order and 

remanding with direction to consider that motion anew, we need not determine whether the circuit 

court erred in its initial dismissal of petitioner’s complaint. 

FILED

February 7, 2020 

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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In March of 2016, the circuit court issued a notice of intent to dismiss due to the extended 

inaction in the proceedings. Several days later, petitioner filed a motion for hearing in which it

asserted that the “action should not be dismissed because counsel for both parties ha[d] been trying 

diligently to settle the dispute.” Petitioner further requested that the circuit court “conduct a hearing

so a Scheduling Order and trial date may be directed.” In December of 2016, without holding a 

hearing, the circuit court issued an order dismissing the case and striking the same from the docket. 

In issuing the order, the circuit court specifically found that “[t]o date, no motion ha[d] been filed 

in response” to the notice of intent to dismiss. 

In March of 2018, petitioner filed a motion to reinstate the matter, citing the earlier filed 

motion for hearing in opposition to the notice of intent to dismiss. Petitioner further alleged that 

“counsel has learned . . . that this matter was dismissed by the Court in December of 201[6].” 

Petitioner provided no additional explanation for the extended delay in the filing of the motion to 

reinstate. On appeal, petitioner asserts that counsel contacted the circuit court by phone in February 

of 2018 to arrange for a scheduling conference, at which point counsel first learned that the case 

had been dismissed. According to petitioner, counsel never received a copy of the circuit court’s 

December 13, 2016, order dismissing the matter.

In March of 2018, again without holding a hearing, the circuit court entered an order 

denying petitioner’s motion to reinstate the matter. In ruling on the motion, the circuit court found 

that “[f]or three years, no action occurred within the case until the [c]ourt filed a Notice of Intent 

to Dismiss.” The circuit court further noted that, “in making its decision to dismiss the case on 

December 13, 2016, [the court] was unaware of [petitioner’s] motion for a hearing.” However, the 

circuit court went on to find that “after reviewing [petitioner’s] motion for a hearing, the Court is 

of the opinion that the result would have been the same.” This was based upon the fact that the 

circuit court’s notice of intent to dismiss indicated that good cause would be required to overcome 

dismissal, yet petitioner’s motion for a hearing simply indicated that the parties had been engaged 

in unsuccessful settlement negotiations in the three years in which no filings were entered in the 

case. Additionally, the court based its ruling on the fact that the dismissal order was entered in 

December of 2016, yet petitioner allowed more than a year to pass before filing the motion to 

reinstate. Accordingly, the circuit court found that it was “without jurisdiction to reinstate the case 

as Rule 41 of the West Virginia Rules of Civil Procedure requires that any case reinstated must be 

within three terms of Court of the dismissal.” It is from the circuit court’s order denying 

petitioner’s motion to reinstate that petitioner appeals.

We have established the following standard of review:

“In reviewing challenges to the findings and conclusions of the circuit court, 

we apply a two-prong deferential standard of review. We review the final order and 

the ultimate disposition under an abuse of discretion standard, and we review the 

circuit court’s underlying factual findings under a clearly erroneous standard. 

Questions of law are subject to a de novo review.” Syl. Pt. 2, Walker v. West 

Virginia Ethics Com’n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Lauderdale v. Neal, 212 W. Va. 184, 569 S.E.2d 431 (2002). Upon our review, we find that it was 

error for the circuit court to deny petitioner’s motion to reinstate on the basis that it lacked 
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jurisdiction to grant the relief requested and that it would have still dismissed the matter even if it 

had been aware of petitioner’s motion for a hearing. 

Rule 41(b) of the Rules of Civil Procedure provides as follows:

For failure of the plaintiff to prosecute or to comply with these rules or any order 

of court, a defendant may move for dismissal of an action or of any claim against 

the defendant. Unless the court in its order for dismissal otherwise specifies, a 

dismissal under this subdivision and any dismissal not provided for in this rule, 

other than a dismissal for lack of jurisdiction or for improper venue, operates as an 

adjudication upon the merits.

Any 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. The court may direct that such order 

be published in such newspaper as the court may name. 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.

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.

In the order on appeal, the circuit court specifically found that because petitioner’s motion to 

reinstate was filed “[m]ore than a year . . . since the dismissal of the action,” it was “without 

jurisdiction to reinstate the case as Rule 41 of the West Virginia Rules of Civil Procedure requires 

that any case reinstated must be within three terms of [c]ourt of the dismissal.” While this is true, 

the circuit court ignored our prior holdings on reinstatement, wherein the Court instructed that 

[w]hen a party fails to make a reinstatement motion within the time period 

prescribed by R.C.P. 41(b) . . . , such party is not entitled to reinstatement of a case 

to the docket and the court is without power to grant such relief, except where the 

parties consent, or where good cause is shown such as fraud, accident, or mistake.

Syl. Pt 1, in part, Arlan’s Dep’t Store of Huntington, Inc. v. Conaty, 162 W. Va. 893, 253 S.E.2d 

522 (1979) (emphasis added). Accordingly, the circuit court’s finding that it lacked jurisdiction to 

grant the motion is erroneous, given that it could have granted the motion upon the parties’ consent 

or a finding of good cause. 

Additionally, the circuit court’s further justification for denying the motion to reinstate 

ignores other clear authority. Despite recognizing that it was “unaware of [petitioner’s] motion for 

a hearing,” the circuit court nonetheless found that such motion would not have changed its 

intention to dismiss the matter. Essentially, the circuit court asserted that even if it had been aware 

of petitioner’s motion, it would not have held a hearing on the notice of intent to dismiss because 
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it believed petitioner’s stated basis against dismissal was insufficient. This is contrary to this 

Court’s direction that “[b]efore 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, 

198 W. Va. 40, 479 S.E.2d 339 (1996) (emphasis added). Accordingly, any assertion that denial 

of the motion to reinstate was appropriate because the circuit court would have denied petitioner a 

hearing on the basis of its motion filed in response to the notice of intent to dismiss is also 

erroneous. Therefore, the order denying petitioner’s motion to reinstate is hereby reversed. On 

remand, the circuit court is directed to consider anew petitioner’s motion to reinstate, in light of 

the authority above. If the circuit court believes that the matter should be reinstated, then the Court 

notes that prior to any potential dismissal for inactivity under Rule 41(b), the parties are entitled 

to both notice and an opportunity to be heard. 

For the foregoing reasons, we reverse the circuit court’s March 19, 2018, order denying 

petitioner’s motion to reinstate the matter on the court’s docket, and remand the matter as 

instructed above.

Reversed and Remanded.

ISSUED: February 7, 2020 

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison