STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Calvin T. Odom, 

Defendant Below, Petitioner FILED 

June 6, 2014 

RORY L. PERRY II, CLERK vs) No. 13-1092 (Jefferson County 12-C-247) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Partners for Payment Relief, DE III, LLC, 

Plaintiff Below, Respondent 

MEMORANDUM DECISION 

Petitioner Calvin T. Odom, appearing pro se, appeals the September 26, 2013, order of the 

Circuit Court of Jefferson County that (1) granted Respondent (Partners for Payment Relief, DE 

III, LLC) summary judgment on its complaint alleging unlawful detainer of real property against 

petitioner; (2) dismissed petitioner’s counterclaim to have the foreclosure sale set aside; and (3) 

denied petitioner’s motion to amend to his counterclaim to include claims for violations of the 

West Virginia Consumer Credit Protection Act [“WVCCPA”] and for intentional infliction of 

emotional distress. Respondent, by counsel Don C.A. Parker, Bruce M. Jacobs, and Megan E. 

McCullough, filed a response. Petitioner filed a reply. 

The Court has considered the parties’ briefs 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 briefs, and the record 

presented, the Court finds that petitioner’s appeal should be dismissed without prejudice for lack 

of a final appealable order. For these reasons, a memorandum decision is appropriate under Rule 

21 of the Rules of Appellate Procedure. 

On May 2, 2012, respondent filed an unlawful detainer action against petitioner in the 

Magistrate Court of Jefferson County alleging that he refused to vacate residential property at 731 

Chickamauga Drive, Harpers Ferry, West Virginia. Respondent claimed that it had the right to 

possession of the property as a result of a foreclosure sale at which it was the highest bidder.1 

Petitioner removed the case to the Circuit Court of Jefferson County where his counsel filed an 

amended answer and counterclaim by which petitioner sought to have the foreclosure sale set 

aside. 

Subsequently, on September 26, 2013, the circuit court (1) granted respondent summary 

judgment on its complaint alleging unlawful detainer of real property against petitioner; 2 

1 The property was foreclosed under a subordinate deed of trust held by respondent. 

2 Despite the circuit court’s summary judgment in respondent’s favor, petitioner remains 

in possession of the property. 

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(2) dismissed petitioner’s counterclaim to have the foreclosure sale set aside; and (3) denied 

petitioner’s motion to amend to include claims for violations of the WVCCPA and for intentional 

infliction of emotional distress. On October 7, 2013, petitioner, appearing pro se, moved the circuit 

court to reconsider its September 26, 2013, order. Because petitioner filed his motion within ten 

days of the circuit court’s order, the motion was made pursuant to Rule 59(e) of the West Virginia 

Rules of Civil Procedure.3 See Syl. Pt. 6, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 

16 (1995). 

The parties appeared for a status hearing on October 18, 2013, at which time both 

respondent and the circuit court acknowledged that petitioner’s motion to reconsider had been 

filed pursuant to Rule 59(e). Respondent also moved that it be granted summary judgment on 

petitioner’s remaining counterclaim—a claim for damages and attorney’s fees under the West 

Virginia Residential Mortgage Lender, Broker and Servicer Act, West Virginia Code §§ 31-17-1 

to -20 (hereinafter “Act”). At the hearing’s conclusion, the circuit court gave the parties fifteen 

days to file additional pleadings. Petitioner asked, “Then[,] you will make a decision as to whether 

summary judgment will be [up]held?” The circuit court answered, “Yes.” 

On November 12, 2013, the circuit court granted respondent summary judgment on 

petitioner’s remaining counterclaim finding that a borrower had no remedy under West Virginia 

Code § 31-17-17(c) for violation of the Act’s licensing requirements. The November 12, 2013, 

order purported to retire the case from the active docket, but the circuit court failed to rule on 

petitioner’s Rule 59(e) motion. 

During the preceding month, petitioner filed his appeal from the circuit court’s September 

26, 2013, order on October 25, 2013. Petitioner did not appeal the November 12, 2013, order. 

Consequently, the only order before this Court is the circuit court’s September 26, 2013, order that 

(1) granted respondent summary judgment on its complaint alleging unlawful detainer of real 

property against petitioner; (2) dismissed petitioner’s counterclaim to have the foreclosure sale set 

aside; and (3) denied petitioner’s motion to amend to include claims for violations of the 

WVCCPA and for intentional infliction of emotional distress. 

On appeal, neither party addresses the fact that the circuit court failed to rule on petitioner’s 

Rule 59(e) motion. In Syllabus Point 2 of James M.B., this Court held that it “has the inherent 

power and duty to determine unilaterally its authority to hear a particular case” and that “[p]arties 

cannot confer jurisdiction on this Court directly or indirectly where it is otherwise lacking.” 193 

W.Va. at 291, 456 S.E.2d at 18. Pursuant to Syllabus Point 3, “appeals only may be taken from 

final decisions of a circuit court.” Id. (citing W.Va. Code § 58-5-1). The Court further held in 

Syllabus Point 7 of James M.B. as follows: 

A motion for reconsideration filed within ten days of judgment being entered 

3 Rule 59(e) provides that “[a]ny motion to alter or amend the judgment shall be filed not 

later than 10 days after entry of the judgment.” 

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suspends the finality of the judgment and makes the judgment unripe for appeal. 

When the time for appeal is so extended, its full length begins to run from the date 

of entry of the order disposing of the motion. 

193 W.Va. at 292, 456 S.E.2d at 18. In the instant case, the circuit court has yet to dispose of 

petitioner’s Rule 59(e) motion. Therefore, this Court finds that (1) the Rule 59(e) motion has 

suspended the finality of the September 26, 2013, order making it unripe for appeal; and (2) once 

the circuit court rules on the motion, petitioner will have his full appeal time in which to appeal. 

See Rule 72, W.V.R.A.P.; James M.B., 193 W.Va. at 295 n. 15, 456 S.E.2d at 22 n. 15. 

Accordingly, this Court dismisses petitioner’s appeal without prejudice. 

Dismissed without Prejudice. 

ISSUED: June 6, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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