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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Stephen Upton,

Plaintiff Below, Petitioner

vs.) No. 19-0328 (Gilmer County 17-C-12)

Caren Jenkins,

Defendant Below, Respondent

MEMORANDUM DECISION

Self-represented petitioner Stephen Upton appeals the Circuit Court of Gilmer County’s 

March 20, 2019, order denying his motion to reinstate his complaint and granting respondent 

costs and attorney’s fees. Respondent Caren Jenkins, by counsel Jeffrey M. Strange, filed a 

response. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in 

improperly dismissing his complaint, with prejudice and without notice, for failure to prosecute; 

abused its discretion in denying his motion to reinstate; and abused its discretion in awarding 

attorney’s fees and costs. 

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 the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure.

In April of 2017, petitioner filed a complaint against respondent in which he alleged that 

respondent defaulted on a loan agreement whereby petitioner loaned her $58,000. Petitioner 

additionally alleged that respondent charged $20,000 to his credit card without his knowledge or 

permission and that the parties agreed to add this amount to the original loan agreement. After 

the filing of various motions and discovery that is not pertinent to this appeal, the circuit court 

held a hearing in March of 2018, which petitioner attended, and scheduled the matter for a bench 

trial on May 24, 2018. In April of 2018, petitioner filed his second motion to compel discovery. 

By order entered on April 30, 2018, the circuit court set petitioner’s second motion to compel 

discovery for hearing on May 11, 2018. 

One day prior to the hearing on petitioner’s second motion to compel discovery, 

petitioner faxed the court a letter requesting that the May 11 hearing, the discovery deadline, and 

the trial date all be continued because, he asserted, he had been hospitalized. Petitioner also 

called the court and explained that he had been hospitalized in an intensive care unit in Austin, 

FILED

September 3, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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Texas. According to the circuit court, “[t]he caller ID on the [c]ourt’s telephone system showed 

that the phone call was from a West Virginia phone number.” By order entered on May 11, 2018, 

the court continued the May 11, 2018, hearing on petitioner’s second motion to compel 

discovery and ordered that petitioner was required to supply medical records indicating the dates 

he was hospitalized in Texas within ten days. However, the circuit court denied petitioner’s 

request to continue the bench trial scheduled for May 24, 2018. Additionally, in the order on 

appeal, the circuit court noted “that following the May 10, 2018, telephone call from the 

[petitioner], the [petitioner] did not attempt to again call the [c]ourt to determine if his request for 

continuance had been denied or granted.” Even more importantly, petitioner “did not supply any 

medical records to the [c]ourt as ordered.” 

On May 24, 2018, respondent and her counsel appeared for the bench trial at the 

appointed time. Petitioner, however, did not appear. As such, the circuit court dismissed 

petitioner’s complaint “for failure to appear and failure to prosecute.” 

Thereafter, on June 14, 2018, petitioner filed a response to the circuit court’s May 11, 

2018, order and requested a continuance. According to petitioner’s response, the May 11, 2018, 

order was faxed to him but he does not have a personal fax machine “and therefore did not 

receive it until he called the [c]lerk’s office to inquire about the case.” Petitioner additionally 

“attached travel receipts indicating he was in Austin, Texas[,] from May 6, 2018, to May 23, 

2018, and required wheelchair assistance at the airport, but he did not provide any medical 

records.” (Emphasis added). On June 22, 2018, petitioner filed a motion to reinstate his 

complaint. Following additional filings, the circuit court held a hearing on petitioner’s motion to 

reinstate on August 27, 2018, during which the court directed petitioner to submit medical 

records for the circuit court to review in camera in order to determine the dates petitioner was 

hospitalized and whether such hospitalization caused him to miss the May 11, 2018, hearing and 

the May 24, 2018, trial. The court also set a deadline for respondent to file her motion for 

attorney’s fees and set another hearing for September 24, 2018. The court specifically ordered 

the parties to be present for the September of 2018 hearing. Thereafter, respondent filed a motion 

for costs and attorney’s fees in the amount of $27,782.07. Petitioner filed a response to this 

motion in September of 2018 and also submitted “to the [c]ourt a document purported to be from 

a West Lake Anesthesia Group that provided services to him on May 7, 2018, as well as photos 

that appeared to show a leg injury.” The court noted, however, that “[t]he records provided . . . 

did not indicate specifically which days the [petitioner] was hospitalized in the State of Texas.” 

The hearing scheduled for September 24, 2018, was set to begin at 9:00 a.m. That 

morning, petitioner “contacted the [c]ourt’s secretary by telephone and stated that he would be 

late for the . . . hearing because he was stuck in traffic in Charleston, West Virginia.” At 9:30 

a.m., petitioner still had not appeared and failed to respond after any of the three times the bailiff 

called his name. In the order on appeal, the court “noted that its [c]ourt [r]eporter travelled that 

day from Sissonville, West Virginia . . . and arrived well before 9:00 a.m.” The court further 

noted that petitioner failed to contact the court again after his contact on May 11, 2018, in order 

to determine if the bench trial was continued. Even more importantly, the circuit court found that 

petitioner still failed to provide any evidence to support his assertion that he was hospitalized in 

Texas on the specific dates in question. Given that petitioner failed to appear for three separate 

hearings, the circuit court ultimately denied his motion to reinstate because of his failure to 
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appear or otherwise prosecute the case. The court then went on to address respondent’s request 

for attorney’s fees and costs. Although the court found that it was not appropriate to grant 

respondent all costs and fees associated with the case, it did find that it was appropriate to award 

her fees and costs associated with hearings that petitioner failed to attend. Reviewing 

respondent’s itemized attorney’s fees and costs, the court ultimately awarded her $3,496.51 in 

attorney’s fees and costs associated with those hearings. It is from the circuit court’s order that 

petitioner appeals.

At the outset, we note that “[t]he circuit court’s power to dismiss a plaintiff’s case for 

failure to appear at trial arises under Rule 41(b) of the West Virginia Rules of Civil Procedure, 

which permits the dismissal of a case for failure to prosecute.” Syl. Pt. 2, Davis v. Sheppe, 187 

W. Va. 194, 417 S.E.2d 113 (1992). However, we have further explained that “[a] motion under 

Rule 60(b) of the West Virginia Rules of Civil Procedure is the appropriate remedy to utilize 

when a plaintiff’s case is dismissed because of the plaintiff’s failure to appear for trial.” Id. at 

194, 417 S.E.2d at 113, syl. pt. 1. Although petitioner did not specifically indicate that his 

motion to reinstate was filed pursuant to Rule 60(b), we nonetheless point out that 

“[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.” Syllabus point 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 

85 (1974).

Syl. Pt. 2, In re Chevie V., 226 W. Va. 363, 700 S.E.2d 815 (2010). With these parameters in 

mind, we turn now to the circuit court’s denial of petitioner’s motion to reinstate. 

On appeal, petitioner argues that he satisfied the requirements for reinstatement by 

establishing good cause for his neglect in the prosecution of the case within three terms of 

dismissal. While petitioner is correct that this is ordinarily the standard for reinstatement after 

dismissal under Rule 41(b) of the Rules of Civil Procedure, he ignores the authority above 

dictating that reinstatement for failure to appear at trial is governed by Rule 60(b). Syl. Pt. 1, in 

part, Dimon v. Mansy, 198 W. Va. 40, 479 S.E.2d 339 (1996) (“Under W.Va.R.Civ.P. 41(b), in 

order to reinstate a cause of action which has been dismissed for failure to prosecute, the plaintiff 

must . . . make a showing of good cause which adequately excuses his neglect in prosecution of 

the case.”) (citation omitted). Because his case was dismissed for his failure to appear for trial, 

petitioner was instead required to establish that he was entitled to relief from the order for one of 

the reasons enumerated in Rule 60(b) of the Rules of Civil Procedure, which sets forth, in 

relevant part, the following:

On motion and upon such terms as are just, the court may relieve a party or a 

party’s legal representative from a final judgment, order, or proceeding for the 

following reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or 

unavoidable cause; (2) newly discovered evidence which by due diligence could 

not have been discovered in time to move for a new trial under Rule 59(b); (3) 

fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, 

or other misconduct of an adverse party; (4) the judgment is void; (5) the 
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judgment has been satisfied, released, or discharged, or a prior judgment upon 

which it is based has been reversed or otherwise vacated, or it is no longer 

equitable that the judgment should have prospective application; or (6) any other 

reason justifying relief from the operation of the judgment. 

Petitioner’s argument on appeal fails to satisfy any of the requirements of Rule 60(b) and his 

assertion that he established good cause for his absence at trial is not supported by the record. 

As petitioner recognizes, the circuit court specifically ordered petitioner to provide good 

cause for his absence in the form of medical records establishing that he was hospitalized in 

Texas on the dates at issue in order to obtain a continuance for trial. Petitioner did not submit any 

such records to the circuit court prior to trial and the court’s dismissal of his complaint. Further, 

in support of his motion for reinstatement he again failed to comply with this directive, instead 

submitting “travel receipts indicating he was in Austin, Texas[,] from May 6, 2018, to May 23, 

2018, and required wheelchair assistance at the airport.” The circuit court found that these 

records were insufficient to support petitioner’s assertion that he could not attend trial because of 

a hospitalization,1and we find no abuse of discretion in this finding. 

Furthermore, it is important to note that petitioner was also absent from the September of 

2018 hearing on his motion to reinstate. Although petitioner asserts that he was stuck in traffic 

and notified the court of this impediment, the court noted that the court reporter traveled to the 

hearing from a location close to the location from which petitioner was travelling and arrived at

the hearing in a timely manner. Petitioner not only failed to establish good cause for his failure to 

attend the trial in this matter, but he also failed to establish good cause for his failure to attend 

the September of 2018 hearing. In short, petitioner’s dereliction of his responsibility to prosecute 

the case below could not be any clearer. 

While petitioner asserts on appeal that his case was not ripe for dismissal because of 

respondent’s failure to participate in discovery, as evidenced by his filing of two motions to 

compel discovery, petitioner again fails to recognize his own dereliction, given that he requested 

a continuance of the hearing on his second motion to compel without providing evidence of good 

cause and failed to remain diligent in his communication with the court in this regard. As this 

Court has warned in the context of dismissals for failure to prosecute, “[t]o be clear, we squarely 

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In his motion to reinstate, petitioner attempted to explain his failure to comply with the 

circuit court’s order by asserting that his “medical records are not in his possession and are 

protected by federal law.” Petitioner did not, however, provide the court with any evidence of his 

efforts to obtain these records by request, subpoena, or any other mechanism. Further, as noted 

above, petitioner also submitted a document that the circuit court found was “purported to be 

from a West Lake Anesthesia Group that provided services to him on May 7, 2018, as well as 

photos that appeared to show a leg injury.” Not only did the court find that the document failed 

to establish any specific date that petitioner may have been hospitalized in Texas, but petitioner 

also failed to include this document in the record on appeal to this Court. As such, any reliance 

on this document does not entitle petitioner to relief. 
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hold that a plaintiff has a continuing duty to monitor a case from the filing until the final 

judgment, and where he or she fails to do so, the plaintiff acts at his or her own peril.” Dimon, 

198 W.Va. at 45, 479 S.E.2d at 344. Here, petitioner requested a continuance approximately two 

weeks prior to trial and thereafter failed to monitor the case. While petitioner asserts that he did

not receive the circuit court’s order denying the continuance because it was faxed instead of 

mailed, the fact remains that he had a duty to monitor the case, which he abdicated. Even more 

importantly, once petitioner was made aware of the circuit court’s requirement for establishing 

good cause for his absence, he made no effort to provide the court with the records in question. 

Having established no error in the circuit court’s denial of petitioner’s motion to reinstate 

because of petitioner’s continued refusal to provide the court with the requested documentation, 

we similarly find no error in the circuit court’s initial dismissal of petitioner’s complaint. Further, 

we find no error in the circuit court dismissing the complaint with prejudice. Id. (“It is well 

settled that a dismissal by a circuit court under Rule 41(b) for failure to prosecute operates as an 

adjudication on the merits and, unless reinstated by subsequent court order, such a dismissal is 

with prejudice.”). 

Finally, petitioner argues that the circuit court erred in awarding respondent attorney’s 

fees and costs below. We find no error in this determination. Petitioner is correct that “[a]s a 

general rule each litigant bears his or her own attorney’s fees absent a contrary rule of court or 

express statutory or contractual authority for reimbursement.” Syl. Pt. 2, Sally-Mike Properties v. 

Yokum, 179 W. Va. 48, 365 S.E.2d 246 (1986). However, petitioner ignores the circuit court’s 

authority to impose sanctions for failure to obey a scheduling order. According to Rule 16(f) of 

the West Virginia Rules of Civil Procedure, 

[i]f a party or party’s attorney fails to obey a scheduling or pretrial order, or if no 

appearance is made on behalf of a party at a scheduling or pretrial conference, or 

if a party or party’s attorney is substantially unprepared to participate in the 

conference, or if a party or party’s attorney fails to participate in good faith, the 

judge, upon motion or the judge’s own initiative, may make such orders with 

regard thereto as are just, and among others any of the orders provided in Rule 

37(b)(2)(B), (C), and (D). In lieu of or in addition to any other sanction, the judge 

may require the party or the attorney representing the party or both to pay 

reasonable expenses incurred because of any noncompliance with this rule, 

including attorney’s fees, unless the judge finds that the noncompliance was 

substantially justified or that other circumstances make an award of expenses 

unjust.

(Emphasis added).2 Further, this Court has explained that

2Although the circuit court below did not rely on this rule in awarding respondent 

attorney’s fees and, in fact, denied respondent’s motion for sanctions under Rule 11 of the Rules 

of Civil Procedure by finding that such an award would be unduly punitive in light of having 

already awarded respondent certain fees and costs, we nonetheless note that this Court may 

affirm a ruling for any reason apparent from the record. Syl. Pt. 2, Adkins v. Gatson, 218 W. Va. 

(continued . . . )
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“[i]n formulating the appropriate sanction, a court shall be guided by 

equitable principles. Initially, the court must identify the alleged wrongful 

conduct and determine if it warrants a sanction. The court must explain its reasons 

clearly on the record if it decides a sanction is appropriate. To determine what 

will constitute an appropriate sanction, the court may consider the seriousness of 

the conduct, the impact the conduct had in the case and in the administration of 

justice, any mitigating circumstances, and whether the conduct was an isolated 

occurrence or was a pattern of wrongdoing throughout the case.” Syl. Pt. 2, 

Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996).

Syl. Pt. 3, Warner v. Wingfield, 224 W. Va. 277, 685 S.E.2d 250 (2009). 

As outlined above, petitioner moved to continue the May 11, 2018, hearing on his motion 

just one day prior to the hearing and failed to appear for the trial of this matter. While petitioner 

asserted that his absence was necessitated by his hospitalization in Texas, the circuit court gave 

him multiple opportunities to provide evidence to establish that his failure to appear was not the 

result of bad faith, which petitioner failed to do. Further, despite being directed to appear in 

person for the hearing in September of 2018, petitioner again failed to appear. In short, 

petitioner’s conduct established a pattern of disrespect for the circuit court’s orders scheduling 

hearings in the matter below. The circuit court clearly expressed that it was granting respondent 

“attorney’s fees related to the hearings” for which petitioner did not appear, instead of granting 

her request for attorney’s fees and costs associated with the entirety of the litigation. As such, we 

find no error in the circuit court’s award of attorney’s fees and costs limited to those hearings for 

which petitioner failed to appear. 

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: September 3, 2020 

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

332, 624 S.E.2d 769 (2005) (“‘This Court may, on appeal, affirm the judgment of the lower court 

when it appears that such judgment is correct on any legal ground disclosed by the record, 

regardless of the ground, reason or theory assigned by the lower court as the basis for its 

judgment.’ Syllabus point 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).”).