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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Wendy Elswick,

Plaintiff Below, Petitioner

vs.) No. 19-0054 (Ohio County 18-CAP-5)

Adelle J. Carson,

Defendant Below, Respondent

MEMORANDUM DECISION

Petitioner Wendy Elswick, self-represented litigant, appeals the November 19, 2018, order 

of the Circuit Court of Ohio County granting Respondent Adelle J. Carson’s motion to dismiss 

petitioner’s appeal from a judgment of the Magistrate Court of Ohio County. Respondent, by 

counsel Bradley K. Shafer, filed a response in support of the circuit court’s order. 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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the 

Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an 

opinion. For the reasons expressed below, the decision of the circuit court is reversed, and this case 

is remanded to the circuit court with directions to hold an evidentiary hearing as to whether, in 

respondent’s prior action against petitioner, (1) the magistrate court adjudicated petitioner’s claim 

that respondent also owed her money; and (2) respondent improperly named petitioner in her 

personal capacity as the defendant rather than Wendy Elswick, Inc. d/b/a Fish Reporting Services.

Petitioner is a certified court reporter and the owner of Wendy Elswick, Inc. d/b/a Fish 

Reporting Services (“the corporation”). Respondent, a court reporter, worked for the corporation

as an independent contractor. On September 7, 2016, respondent filed a complaint in the 

Magistrate Court of Ohio County in Case No. 16-M35C-00635 (“first action”). On April 12, 2017, 

petitioner filed a complaint in the magistrate court in Case No. 17-M35C-00196 (“second action”).

In the first action, respondent filed her complaint against “Wendy Elswick d/b/a Fish 

Reporting Services,” alleging that between 2014 and 2016, petitioner failed to pay respondent her 

share of commissions earned in the performance of court reporting services. Respondent asked for 

FILED

August 28, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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a judgment against petitioner in the amount of $5,856.21,1plus $95 in court fees and costs and 

post-judgment interest. 

On October 4, 2016, petitioner filed an answer to respondent’s complaint and did not check 

the box indicating that she was asserting a counterclaim against respondent. However, petitioner 

submitted evidence to show that respondent owed petitioner for providing, in petitioner’s personal 

capacity, audio proofreading services to respondent between 2014 and 2016. Subsequently, the 

magistrate court held a bench trial in respondent’s action against petitioner on January 23, 2017. 

At the beginning of trial, petitioner states that she requested the dismissal of respondent’s 

complaint because respondent should have sued the corporation, and the magistrate court denied 

that request.

Following trial, the magistrate court entered judgment on March 9, 2017, in respondent’s 

favor in the full amount she claimed, $5,856.21, plus $95 in court fees and costs and post-judgment 

interest at 7% per year. The magistrate court’s judgment order fails to reflect whether it adjudicated 

only respondent’s claim against petitioner or whether it also adjudicated petitioner’s claim against 

respondent, either as a setoff against respondent’s claim or as an independent counterclaim. 

Petitioner did not file an appeal from the March 9, 2017, judgment order in the Circuit Court of 

Ohio County until April 12, 2017. Accordingly, by order entered May 17, 2017, the circuit court 

dismissed petitioner’s appeal as untimely filed. Petitioner did not appeal that order.

However, on the same day petitioner filed her appeal from the magistrate court’s judgment 

order in the first action, petitioner filed her complaint in the second action and submitted 

substantially the same evidence to the magistrate court as she submitted with her answer in the 

first action. Petitioner sought payment for providing respondent with audio proofreading services 

between 2014 and 2016. Subsequently, respondent filed a motion to dismiss the second action, 

arguing that the doctrine of res judicata barred petitioner’s claim due to the magistrate court’s 

adjudication of that claim in the first action. The magistrate court did not rule on respondent’s 

motion until after holding a bench trial on petitioner’s claim on March 8, 2018. 

On March 13, 2018, the magistrate court entered a judgment order and filed separate 

findings of fact and conclusions of law (“opinion letter”). In the opinion letter, the magistrate court

denied respondent’s motion to dismiss based on the doctrine of res judicata, finding that an 

examination of the record in the first action revealed “no written record of a counterclaim . . .[,] 

and the [March 9, 2017, judgment order] reflects no dismissal of a counterclaim.” On the merits 

of petitioner’s claim, the magistrate court found that petitioner failed to prove that respondent 

owed her for providing audio proofreading services. Accordingly, in the March 13, 2018, judgment 

order, the magistrate court entered judgment in respondent’s favor.

Petitioner filed a timely appeal from the March 13, 2018, judgment order in the circuit 

court, and respondent filed a motion to dismiss the appeal. Unlike the magistrate court, by order 

entered on November 19, 2018, the circuit court found that the doctrine of res judicata barred 

1The Legislature amended West Virginia Code § 50-2-1 to raise the monetary limit of the 

magistrate court’s jurisdiction from $5,000 to $10,000, effective June 5, 2016. See 2016 W. Va. 

Acts ch. 55.
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petitioner’s claim in the second action. The circuit court acknowledged that petitioner did not file 

a counterclaim in the first action, but determined that petitioner presented evidence to support such 

a claim in that action. The circuit court further found, in the alternative, that if petitioner failed to 

present the evidence in support of a counterclaim in the first action, the doctrine of laches 

prevented petitioner from raising the claim in the second action given her failure to present the 

claim in the first action when she had the evidence to do so. 

We review de novo the circuit court’s November 19, 2018, order granting respondent’s 

motion to dismiss. See Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 

W. Va. 770, 461 S.E.2d 516 (1995). However, we initially address petitioner’s argument that the 

circuit court’s May 17, 2017, order dismissing her appeal in the first action is also erroneous.

Respondent counters that the May 17, 2017, order is not before us due to petitioner’s failure to file 

an appeal from that order. We agree with respondent. West Virginia Code § 58-5-4 and Rule 5(f) 

of the West Virginia Rules of Appellate Procedure provide that there is a four-month period to 

appeal a final judgment or order. In West Virginia Department of Energy v. Hobet Mining and 

Construction Company, 178 W. Va. 262, 358 S.E.2d 823 (1987), we found that “[the] failure to 

file a timely appeal presents a jurisdictional infirmity precluding the court from accepting the 

appeal.” Id. at 264, 358 S.E.2d at 825. Here, petitioner filed no appeal from the May 17, 2017, 

order. Therefore, we conclude that petitioner is precluded from arguing that the circuit court’s 

dismissal of her appeal in the first action was erroneous.

However, we find that the validity of the magistrate court’s March 9, 2017, judgment order 

petitioner attempted to appeal in the first action is before us for two reasons. First, in Syllabus 

Point 2 of Beane v. Dailey, 226 W. Va. 445, 701 S.E.2d 848 (2010), we reiterated:

“‘“A void judgment, being a nullity, may be attacked, collaterally or 

directly, at any time and in any court whenever any claim or right is asserted under 

such judgment.” Syl. pt. 3, State ex rel. Vance v. Arthur, 142 W.Va. 737, 98 S.E.2d 

418 (1957).’ Syl. Pt. 3, State ex rel. Lemley v. Roberts, 164 W.Va. 457, 260 S.E.2d 

850 (1979), overruled on other grounds by Stalnaker v. Roberts, 168 W.Va. 593, 

287 S.E.2d 166 (1981).” Syllabus Point 5, State ex rel. Farber v. Mazzone, 213 

W.Va. 661, 584 S.E.2d 517 (2003).

Second, for the doctrine of res judicata to bar a subsequent action, the court entering judgment in 

the prior action is required to have possessed jurisdiction to render that judgment. See Syl. Pt. 4,

Blake v. Charleston Area Med. Ctr., Inc., 201 W. Va. 469, 498 S.E.2d 41 (1997) (holding that one 

of the elements necessary for res judicata to apply is a final adjudication on the merits by a court 

having jurisdiction of the proceedings). Here, petitioner argues that the magistrate court did not 

have personal jurisdiction over the proper defendant in the first action given respondent’s filing of 

a complaint against petitioner rather than the corporation. See State ex rel. West Virginia Truck 

Stop, Inc. v. Belcher, 156 W. Va. 183, 187, 192 S.E.2d 229, 232 (1972) (“To hear and determine 

an action[,] the court must have jurisdiction of the parties.”).

Petitioner further argues that West Virginia Code § 50-4-9 and Rule 5(b) of the West 

Virginia Rules of Civil Procedure for Magistrate Courts permit her to raise her claim in the second

action. West Virginia Code § 50-4-9 provides that, in a magistrate court action:
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A defendant in a civil action may file a counterclaim and if such counterclaim arises 

from the same transaction or occurrence that is the subject matter of the initial claim 

they shall be tried together. The failure to institute a counterclaim permitted by this 

section shall not preclude the institution of an action on such claim at a later date. 

The adjudication of the original claim shall not constitute res judicata as to any such 

permitted counterclaim nor shall it act as an estoppel as to such permitted 

counterclaim. 

Rule 5(b) similarly provides that “[t]he failure of a defendant to institute a counterclaim permitted 

by this rule shall not preclude the institution of a separate action on such claim at a later time.”

Here, we find that the clear language of West Virginia Code § 50-4-9 and Rule 5(b) 

precludes the circuit court’s alternate ruling that the doctrine of laches bars the second action. As 

we held in the Syllabus of Weller v. Moffett’s Pharmacy, Inc., 167 W. Va. 199, 279 S.E.2d 196

(1981):

Under the express terms of W.Va. Code, 50-4-9 (1978), a defendant in a 

civil action in magistrate court who fails to assert a counterclaim is not precluded 

from instituting an action on such claim at a later date, nor will the adjudication of 

the original claim constitute res judicata or act as an estoppel as to any such 

counterclaim.[2]

(Underlined emphasis and footnote added). In addition, there was no unreasonable delay because, 

as the circuit court itself found, petitioner filed the second action the same day she filed her appeal 

from the magistrate court’s March 9, 2017, judgment order in the first action. See State ex rel. 

Webb v. W.Va. Bd. of Medicine, 203 W.Va. 234, 237, 506 S.E.2d 830, 833 (1998) (“The elements 

of laches consist of (1) unreasonable delay and (2) prejudice.”) (Internal quotation and citations 

omitted). Therefore, we conclude that the circuit court’s alternate ruling, that the doctrine of laches 

applies to this case, is erroneous.

With regard to the doctrine of res judicata, respondent argues that regardless of whether 

petitioner filed a counterclaim in the first action, she presented evidence to support such a claim

in that action. Assuming arguendo that petitioner raised her claim in the first action, we find that 

we cannot determine whether the doctrine of res judicata applies on the present record given that 

the doctrine requires a final adjudication on the merits in the first action. In Crouse v. Hobday, No. 

15-1186, 2016 WL 6835735 (W. Va. Nov. 21, 2016) (memorandum decision), the petitioners 

appealed a circuit court’s order awarding summary judgment based on a prior magistrate court 

judgment against them. This Court in Crouse remanded the case to the circuit court for an 

evidentiary hearing as to whether the magistrate court held a bench trial in the prior action. Id. at 

2The West Virginia Rules of Civil Procedure for Magistrate Courts were not promulgated 

until 1988.
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*1. Here, while there is no dispute that the magistrate court held a bench trial in the first action,3

the magistrate court’s March 9, 2017, judgment order is silent as to whether it adjudicated 

petitioner’s claim against respondent either as a setoff against respondent’s claim or as an 

independent counterclaim. Therefore, we conclude that it is necessary to remand this case to the 

circuit court for an evidentiary hearing as to whether the magistrate court adjudicated petitioner’s 

claim in the first action.

Because the magistrate court’s alleged lack of personal jurisdiction in the first action affects 

the application of the doctrine of res judicata and also constitutes a separate issue, we direct that 

the circuit court further determine whether respondent improperly named petitioner in her personal 

capacity rather than the corporation as the defendant in the first action.4 Therefore, we reverse the 

circuit court’s November 19, 2018, order dismissing petitioner’s appeal and remand this case for 

an evidentiary hearing as to whether, in the first action, (1) the magistrate court adjudicated 

petitioner’s claim that respondent also owed her money; and (2) respondent improperly named 

petitioner in her personal capacity as the defendant rather than Wendy Elswick, Inc. d/b/a Fish 

Reporting Services.5

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

dismissing petitioner’s appeal and remand this case with directions.

Reversed and Remanded with Directions.

ISSUED: August 28, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

3Petitioner argues that procedural irregularities surrounded the magistrate court’s holding 

of the January 23, 2017, bench trial. However, as concluded above, because of petitioner’s failure 

to file an appeal to this Court in the first action, all nonjurisdictional issues regarding that action 

are not before us. 

4

In Laya v. Erin Homes, Inc., 177 W. Va. 343, 352 S.E.2d 93 (1986), we set forth standards 

for determining when the corporate veil may be pierced under the law of West Virginia.

5Should petitioner’s action survive dismissal following the evidentiary hearing, she would 

be entitled to a trial de novo on her claim that respondent owed her money for providing respondent 

with audio proofreading services between 2014 and 2016. See W. Va. Code § 50-5-12(b) (“In the 

case of an appeal of a civil action tried before the magistrate without a jury, the hearing on the 

appeal before the circuit court shall be a trial de novo, triable to the court, without a jury.”); W. 

Va. Rul. Civ. Proc. Magis. Cts. 18(d) (“An appeal of a civil action tried before a magistrate without 

a jury shall be by trial de novo in circuit court without a jury.”).