STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Stephen F. Nelson, FILED 

Defendant Below, Petitioner October 4, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 12-1163 (Boone County 12-C-AP-6) OF WEST VIRGINIA 

James O. Marcum and Naomi Marcum, 

Plaintiffs Below, Respondents 

MEMORANDUM DECISION 

Petitioner Stephen F. Nelson, appearing pro se, appeals the order of the Circuit Court of 

Boone County, entered October 11, 2012, that denied his motion to reconsider the dismissal of his 

magistrate court appeal for a failure to appear.1 Respondents James O. Marcum and Naomi 

Marcum, appearing pro se, filed a response. 

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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Petitioner was married to respondents’ daughter for several years. Subsequent to 

petitioner’s divorce from their daughter, respondents filed a complaint against petitioner in the 

Magistrate Court of Boone County on May 3, 2012, alleging that he owed them $5,000 for 

various unpaid loans.2 The certified mail receipt indicates that petitioner was served with the 

complaint on May 11, 2012, at his address of P.O. Box 787, Chapmanville, West Virginia. 

Following a bench trial held on June 15, 2012, the magistrate court entered judgment in 

respondents’ favor in the amount of $5,000, plus court costs in the amount of $90, at 7% per 

annum. Petitioner filed an appeal from the magistrate court’s judgment, and in so doing, posted a 

personal recognizance appeal bond. Petitioner listed his address as P.O. Box 787, Chapmanville, 

West Virginia. 

On July 13, 2012, the circuit court directed the circuit clerk to send the parties a notice of 

hearing on petitioner’s appeal for August 9, 2012. Because petitioner did not appear for the 

1 The circuit court originally entered its order denying petitioner’s motion to reconsider on 

September 4, 2012, but subsequently entered an amended order on October 11, 2012, to correct a 

typographical error. 

2 Respondents claimed that the total amount owed was $6,500, but stated that they were 

restricting their recovery to the magistrate court’s jurisdictional limit. 

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August 9, 2012 hearing, the circuit court entered an order on August 16, 2012, dismissing the 

appeal without prejudice. See Rule 41(b), W.V.C.R.P. (Involuntary dismissal can be entered for a 

failure to comply with any court order; however, notice and an opportunity to be heard must be 

given). On August 31, 2012, petitioner filed a motion to reconsider the dismissal of his appeal 

stating that he never received “a certified letter” notifying him of the hearing. We note that 

pursuant to Rule 5(b) of the West Virginia Rules of Civil Procedure, subsequent to the original 

complaint, every order, pleading, and other paper can be served by “mailing it to the attorney or 

party at the attorney’s or party’s last-known address.” 

In its October 11, 2012 order denying petitioner’s motion to reconsider the dismissal of his 

appeal, the circuit court found that the notice of hearing for the August 9, 2012 hearing was sent 

to “an address submitted by [petitioner] in his [p]etition of [a]ppeal.” The circuit court further 

found as follows: 

[Petitioner]’s case was properly called by the [b]ailiff on [August 9, 

2012,] pursuant to the [n]otice of [h]earing theretofore issued and 

present in the case file. It was apparent, after repeated 

announcement of the parties’ names, that [petitioner] was not 

present and would not make an appearance. After review of the case 

file, this Court ordered the appeal dismissed. 

Accordingly, the circuit court denied the motion and indicated that the denial constituted its final 

ruling. Petitioner appeals the circuit court’s denial of his motion to reconsider the dismissal.3 

We review the circuit court’s dismissal of petitioner’s appeal for a failure to appear under 

an abuse of discretion standard. See Caruso v. Pearce, 223 W.Va. 544, 547, 678 S.E.2d 50, 53 

(2009) (“We review a circuit court’s order dismissing a case . . . pursuant to Rule 41(b) under an 

abuse of discretion standard.”). On appeal, petitioner argues that the circuit court did not give him 

proper notice of the August 9, 2012 hearing, and that he demonstrated good cause to have his 

appeal reinstated. Respondents counter that the circuit court acted properly in dismissing the 

appeal because petitioner failed to appear and that petitioner did not demonstrate good cause to 

reinstate his appeal. The circuit court’s dismissal of the appeal is well-supported by the findings 

contained in its October 11, 2012 order that denied petitioner’s motion to reconsider. Therefore, 

this Court concludes that the circuit court did not abuse its discretion in dismissing petitioner’s 

appeal for a failure to appear. 

For the foregoing reasons, we affirm. 

Affirmed. 

3 When petitioner filed his notice of appeal in this Court, he again listed P.O. Box 787, 

Chapmanville, West Virginia, as his address. 

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ISSUED: October 4, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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