STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Terry Raab and Anna Raab,
 

Plaintiffs Below, Petitioners FILED
 

November 8, 2013 

RORY L. PERRY II, CLERK vs) No. 13-0249 (Kanawha County 08-C-187) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

David M. Marshall, an individual, and Paul D. Marshall Architects 

& Engineers, Inc., a West Virginia Corporation 

Defendants Below, Respondents 

MEMORANDUM DECISION 

Petitioners Terry and Anna Raab, plaintiffs below, by counsel Stephen E. Hastings, 

appeal the Circuit Court of Kanawha County’s August 28, 2012, “Order Granting Defendants’ 

Motion to Dismiss for Failure to Prosecute” and January 31, 2013, “Order Denying Motion [to 

Reinstate Case].” Respondents David M. Marshall and Paul D. Marshall Architects & Engineers, 

Inc., defendants below, by counsel Mark A. Swartz and Mary Jo Swartz, respond in support of 

the order. 

This 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 no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming is appropriate under Rule 21 of the Rules of 

Appellate Procedure. 

I. Factual and Procedural History 

A non-party to this appeal, Saville Construction, performed home renovation work for 

Petitioners Mr. and Mrs. Raab. The architect on the project was Respondent David Marshall of 

Respondent Paul D. Marshall Architects & Engineers, Inc. (collectively referred to herein as 

“Marshall”). The Raabs assert that Marshall also agreed to perform construction oversight. In 

2006, Saville Construction and the Raabs filed cross lawsuits for issues arising out of the 

renovation project. On January 28, 2008, the Raabs filed the instant lawsuit suit against Marshall 

alleging that Marshall’s work on the project constituted a breach of contract, negligence, breach 

of fiduciary duty, and misrepresentation.1 Marshall denied any wrongdoing. Thereafter, Saville 

Construction and the Raabs settled with one another. 

Pursuant to a December 1, 2010 scheduling order, the Raabs’ claims against Marshall 

were set for trial on May 2, 2011. On February 17, 2011, one of the Raabs’ experts on liability 

was deposed, but another of their experts—a contractor—had an emergency and could not be 

deposed on that day. 

On April 6, 2011, Marshall moved to continue the trial, or strike the Raabs’ expert 

1 The specific allegations are not explained in the briefs or in the record on appeal, and 

the merits of the case are not before this Court. 

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witnesses, or dismiss the case for the Raabs’ failure to produce expert witnesses for deposition. 

The Raabs verbally agreed to a continuance, and the court continued the trial without entering a 

written order. 

On May 7, 2012, Marshall filed a motion pursuant to West Virginia Rule of Civil 

Procedure 41(b) to dismiss the case for failure to prosecute. Rule 41(b) provides, in part, 

(b) Involuntary dismissal; effect thereof. – 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 courts costs, may, in its discretion, order such action to be 

struck from its docket; and it shall thereby be discontinued. . . . 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 . . . . 

The circuit court held a hearing on the Rule 41(b) motion on July 23, 2012, and granted 

the motion by order entered on August 28, 2012. The court found, inter alia, that no filings or 

hearings had occurred in the case since the trial was continued over a year earlier; the Raabs had 

not identified an expert architect or provided Marshall with a date for deposing their expert 

contractor; the case had been pending for four years; and the Raabs had not met their burden of 

demonstrating good cause for the delay. Thereafter, the Raabs filed a motion for reinstatement. 

On January 31, 2013, the circuit court denied the motion to reinstate upon concluding that the 

Raabs failed to show good cause to excuse the neglectful prosecution. 

II. Standard of Review 

In Caruso v. Pearce, we discussed our standard of review of an order dismissing a case 

pursuant to Rule 41(b): 

We review a circuit court's order dismissing a case for inactivity pursuant to Rule 

41(b) under an abuse of discretion standard. We stated in Dimon v. Mansy, 198 

W.Va. 40, 46, 479 S.E.2d 339, 345 (1996): 

Traditionally, our scope of review, even where reinstatement [of an 

action which is dismissed for failure to prosecute] is timely sought, 

is limited. It is only where there is a clear showing of an abuse of 

discretion that reversal is proper. 

“Only where we are left with a firm conviction that an error has been committed 

may we legitimately overturn a lower court's discretionary ruling.” Covington v. 

Smith, 213 W.Va. 309, 322, 582 S.E.2d 756, 769 (2003). See also, Intercity Realty 

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Co. v. Gibson, 154 W.Va. 369, 377, 175 S.E.2d 452, 457 (1970) (“Where the law 

commits a determination to a trial judge and his discretion is exercised with 

judicial balance, the decision should not be overruled unless the reviewing court 

is actuated, not by a desire to reach a different result, but by a firm conviction that 

an abuse of discretion has been committed.”) 

Caruso v. Pearce, 223 W.Va. 544, 547, 678 S.E.2d 50, 53 (2009). 

III. Applicability of Rule 41(b) 

The Raabs argue that during the thirteen-month period preceding the Rule 41(b) motion, 

they did engage in “proceedings” as that word is used in the rule. They contend that there was no 

period of inactivity that would make their case subject to involuntary dismissal. They argue that 

“the word ‘proceeding’ as used in Rule 41(b) must be broadly construed to include any step or 

measure taken in either the prosecution or the defense of the action, except a continuance.” 

Taylor v. Smith, 171 W.Va. 665, 667, 301 S.E.2d 621, 624 (1983) (quoting Syl. Pt. 1, in part, 

Millar v. Whittington, 87 W.Va. 664, 105 S.E. 907 (1921)). They also rely upon Vozniak v. 

Winans that said: “Rule 41(b) allows an involuntary dismissal only after no activity has been 

taken in a case for more than one year.” Id., 191 W.Va. 228, 229-30, 445 S.E.2d 169, 170-71 

(1994). 

To support their argument that there were “proceedings” during the thirteen-month 

period, the Raabs point out that on June 17, 2011, they paid a twenty dollar fee to the circuit 

clerk so that their case would remain on the court’s docket. This fee was paid pursuant to West 

Virginia Code § 59-1-11(b)(11), pertaining to fees for cases remaining on the docket longer than 

three years.2 We find this argument to be unavailing. The fee payment to the clerk’s office 

simply maintained the status quo, it did nothing to further the prosecution of the case. Moreover, 

Rule 41(b) grants a court authority to dismiss a case when an action is pending for more than one 

year with no order or proceeding, “or” when the plaintiff is delinquent in the payment of accrued 

court costs. The use of the disjunctive “or” indicates that dismissal for lack of an order or 

proceeding is a separate ground for dismissal from the failure to pay court costs. If a plaintiff 

could maintain a case on the docket indefinitely by doing nothing more than paying a small 

annual court cost, then other provisions of Rule 41(b) would be frustrated. 

The Raabs also argue that the parties had informal discussions about conducting a second 

mediation. The Raabs assert that a mediator was agreed upon, but no mediation date was set. 

Marshall denies agreeing to mediate during the thirteen-month period. Marshall asserts that the 

parties engaged in an unsuccessful mediation in 2010, and nothing had changed in the interim. 

Marshall asserts that despite requests, the Raabs failed to provide a date when their expert 

contractor could be deposed; they never identified an expert architect or provided any report that 

shows Marshall was negligent; and, after years of litigation, the Raabs never specified a 

monetary value for their alleged damages. 

The record on appeal contains two e-mails sent by the Raabs’ lawyer—sent on April 3 

and May 4, 2012, respectively—where the Raabs’ lawyer inquired of Marshall’s lawyers about 

their availability for mediation. However, there is no evidence in the appellate record to prove 

that Marshall or his lawyers agreed to mediate during the months leading up to their Rule 41(b) 

2 In 2012, this subsection was redesignated as West Virginia Code § 59-1-11(b)(10). 

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motion. In light of the dearth of evidence, we cannot conclude that the circuit court abused its 

discretion in rejecting the Raabs’ argument that mediation was planned. 

The Raabs also assert that the circuit court dismissed their case two months after they 

obtained a new trial date and new scheduling order. They set this scheduling conference and 

obtained this order after the Rule 41(b) motion was filed. Inasmuch as the motion to dismiss was 

pending, and more than a year of inactivity had already occurred, we do not find this after-thefact action by the Raabs to be persuasive. 

It is undisputed that the circuit court did not enter any orders for more than one year 

preceding the Rule 41(b) motion. Also, there were no hearings, depositions or other discovery, 

witness disclosures, or other litigation activity during this period. Even using a broad definition 

of the term “proceedings” as proposed by the Raabs, we find no abuse of discretion in the circuit 

court’s conclusion that no proceedings occurred in excess of one year. Thus, the case was subject 

to dismissal under Rule 41(b). 

IV. Failure to establish good cause for the delay 

Upon concluding that the case was subject to dismissal under Rule 41(b), the next step is 

to examine whether the Raabs showed good cause for their inactivity. We have previously 

discussed what a plaintiff must do to avoid dismissal for inactivity: 

“[B]efore a case may be dismissed under Rule 41(b), [a plaintiff may avoid 

dismissal by showing good cause for the delay in prosecuting the case.] . . . [T]he 

plaintiff bears the burden of going forward with evidence as to good cause for not 

dismissing the action; if the plaintiff does come forward with good cause, the 

burden then shifts to the defendant to show substantial prejudice to it in allowing 

the case to proceed; if the defendant does show substantial prejudice, then the 

burden of production shifts to the plaintiff to establish that the proffered good 

cause outweighs the prejudice to the defendant. . . . [T]he court, in weighing the 

evidence of good cause and substantial prejudice, should also consider (1) the 

actual amount of time involved in the dormancy of the case, (2) whether the 

plaintiff made any inquiries to his or her counsel about the status of the case 

during the period of dormancy, and (3) other relevant factors bearing on good 

cause and substantial prejudice. . . .” Syllabus Point 3, in part, Dimon v. Mansy, 

198 W.Va. 40, 479 S.E.2d 339 (1996). 

Syl. Pt. 1, Caruso, 223 W.Va. at 546, 678 S.E.2d at 52. The Raabs’ “good cause” arguments are 

that settlement discussions were underway; that fundamental fairness and due process principles 

favor adjudication on the merits; and that Marshall would not suffer prejudice if the case were 

reinstated. 

After carefully considering the arguments and the circuit court’s orders, and in light of 

our analysis above, we do not find any abuse of discretion in the circuit court’s dismissal and 

refusal to reinstate the case. This lawsuit had been pending for four years when the Rule 41(b) 

motion was filed—and the companion litigation against Saville Construction had begun two 

years before that. The previous motion to exclude witnesses or to dismiss the case concerned the 

Raabs’ failure to identify an expert witness and to produce another expert witness for deposition, 

yet another year passed and the Raabs failed to address these issues. Now, after the delays, the 

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Raabs argue that they do not need an expert architect to prove their case, but this argument does 

not address their failure to complete discovery or take other action to prosecute the case. 

The Raabs argue that Marshall did not suffer substantial prejudice by the delay, but under 

Syllabus Point 3 of Dimon, a defendant does not have to prove substantial prejudice unless the 

plaintiff first comes forward with evidence of good cause for the delay. Id., 198 W.Va. at 546, 

678 S.E.2d at 52. In this case, the Raabs have not presented evidence of good cause for the delay. 

Finally, the Raabs contend that the circuit court did not make sufficient findings of fact 

and conclusions of law in its orders. We disagree. The court cited the relevant law, explained 

how long the case had been pending, and explained plaintiffs’ inactivity. We find that the orders 

are sufficient for appellate review. 

V. Conclusion 

In light of our deferential standard of review, and after a review of the parties’ arguments 

and the record on appeal, we are not left with a firm conviction that an error has been committed 

in this case. See Caruso, 223 W.Va. at 547, 678 S.E.2d at 53. For the foregoing reasons, we 

affirm. 

Affirmed. 

ISSUED: November 8, 2013 

CONCURRED IN BY: 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISQUALIFIED: 

Chief Justice Brent D. Benjamin 

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