West Virginia Record

Thursday, April 9, 2020

State Supreme Court denies writ seeking to have case dismissed

Federal Court

By Kyla Asbury | Mar 19, 2020

Wvschero

CHARLESTON — The West Virginia Supreme Court of Appeals denied a writ of prohibition concerning a case against a financial institution that sought to have a case against it dismissed.

Justice Beth Walker authored the March 6 opinion. The court found that the petitioners, Johnson & Freedman, failed to establish that the circuit court's order to deny their motion to dismiss the case was clearly erroneous or flagrant abuse of discretion.

Nadine R. Rice filed suit against Homecomings Financial, Johnson & Freedman and David C. Whitridge in 2010, alleging they negligently ejected her from her home. The case failed to progress for several reasons, including the fact that Homecomings filed for bankruptcy.

Johnson & Freedman and Whitridge filed a motion to dismiss the case under West Virginia Rule of Civil Procedure 41(b) on February 2019, but the circuit court denied the motion, concluding that good cause justified Rice's delay.

During the case, Homecomings filed for bankruptcy and the case stalled until 2016, when Homecomings was dismissed from the case. Attorneys in the case stayed in constant communication, according to the suit, however, in February 2019, the petitioners filed the motion to dismiss. A hearing was held and the lower court denied the motion last May.

The petitioners then sought a writ of prohibition from the Supreme Court, prohibiting the circuit court from enforcing the May 2019 order.

"Prohibition is an extraordinary remedy that we issue only in extraordinary cases," Walker wrote. "Petitioners have not shown that this case is extraordinary."

Walker wrote that the petitioners have not demonstrated that the circuit court’s order denying their motion to dismiss Rice’s claims under West Virginia Rule of Civil Procedure 41(b) is a clear legal error or flagrant abuse of the court’s discretion, which is why the court is denying the writ.

"Petitioners have not cited any case in which this Court has held that dismissal under Rule 41(b) is mandatory when a plaintiff has let her case lie dormant for a certain period of time," Walker wrote.

Lacking that definitive statement in either the rule or our cases applying it, the petitioners have not demonstrated that the circuit court’s order denying their motion to dismiss Rice’s claims is an error of law that is "substantial, clear-cut, [and] plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts..." the opinion states

West Virginia Supreme Court of Appeals case number: 19-0772

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West Virginia Supreme Court of Appeals