                           STATE OF WEST VIRGINIA
                         SUPREME COURT OF APPEALS


GEORGE GROOMS AND                                                      FILED
ANNIE GROOMS,                                                       March 6, 2014
Plaintiffs Below, Petitioners                                       released at 3:00 p.m.
                                                                    RORY L. PERRY II, CLERK
                                                                  SUPREME COURT OF APPEALS
vs) No. 13-0387 (Kanawha County 09-C-AP-132)                          OF WEST VIRGINIA



MILDRED GROOMS,
Defendant Below, Respondent



                             MEMORANDUM DECISION


       The petitioners and plaintiffs below, George and Annie Grooms, by counsel Herbert
L. Hively, II, appeal the March 25, 2013, order of the Circuit Court of Kanawha County
pertaining to certain real property they own that is currently occupied by the respondent and
defendant below, Mildred Grooms, who is represented by her counsel, John R. Mitchell and
David M. Dawson.

        This Court has considered the parties’ briefs, oral arguments, and the submitted
record, as well as the pertinent authorities, and finds no substantial question of law and no
prejudicial error. Accordingly, for these reasons, a memorandum decision affirming the
circuit court’s order is appropriate pursuant to Rule 21 of the Rules of Appellate Procedure.

        Petitioner George Grooms and Respondent Mildred Grooms are brother and sister.
It is undisputed that George Grooms and his wife, Annie, own adjoining lots located on
Kanawha Avenue in Chesapeake, West Virginia. Sometime in the 1970s, George Grooms
constructed a house on each lot. One house is occupied by the petitioners and the other one
is occupied by the respondent. It is also undisputed that the respondent provided money (in
excess of $10,000) for the purchase of the lumber to construct the house on the lot that she
occupies. The respondent contends that at the time, her brother agreed to give her a deed to
the home in exchange for the money she invested in its construction. However, the property
was never conveyed to the respondent. Nonetheless, the respondent has continuously resided
in the home since 1975.


                                             1
       In 2009, the petitioners filed a petition for eviction in the Magistrate Court of
Kanawha County, seeking to evict the respondent from the subject property. The petition
was granted. The respondent appealed the decision to the circuit court, claiming an
ownership interest in the subject property. Following an evidentiary hearing, the circuit court
entered an order on May 6, 2010, finding that the respondent has a life estate in the subject
property. The order further set forth various duties and responsibilities of the parties with
respect to the subject property. The order also stated that the petitioners should not interfere
with the respondent’s quiet possession of the property.

       On July 29, 2010, the respondent filed a petition for contempt in the circuit court. A
hearing was held on September 8, 2010. The court found that the petitioners were in
contempt of the May 6, 2010, order and directed them to remove a fence they had erected on
the subject property. On November 30, 2011, the petitioners filed a “Motion to Reinstate
This Civil Action and Modify and/or Clarify the Court’s Order of May 6, 2010.” Although
styled as a motion to modify and/or clarify, the motion specifically requested that the circuit
court reconsider its prior ruling that the respondent has a life estate in the subject property.1
It appears that no action was taken on the motion until after the respondent filed a second
Petition for Contempt on January 18, 2013.

       A hearing was held on January 23, 2013, on the respondent’s second motion for
contempt. During that hearing, the petitioners asked the circuit court to rule on their motion
for reconsideration. The circuit court then denied the motion. Thereafter, the circuit court
entered the March 25, 2013, order finding

              [t]hat George and Amy [sic] Grooms have again interfered with
              Mildred Grooms’ free use of her life estate by obstructing the
              use of Ms. Grooms’ driveway and yard, by threatening to enter
              her home, and by harassment of visitors, whether business or
              personal.

The order further stated:

              It is therefore, ORDERED and ADJUDGED:




       1
         The record indicates that the petitioners had previously filed a pro se motion for
reconsideration on May 25, 2010, but it was not included in the appendix record submitted
to this Court.

                                               2
              A. That any maintenance or upkeep of the yard, and driveway
              shall be the responsibility of George and Annie Grooms, but
              they shall be respectful of Ms. Mildred Grooms when doing so.
              B. That . . . Mildred Grooms, shall insure the residence she
              currently occupies and shall include [George and Annie
              Grooms] on said policy. (A copy of the current insurance policy
              with changes thereto is attached)[.]
              C. That . . . George and Amy [sic] Grooms, or anyone on their
              behalf, shall immediately cease and desist all harassment, direct
              or indirect, of [Mildred Grooms], and to allow her free and
              uninterrupted use of her home, her yard, and her driveway, for
              herself and her visitors.
              D. That if [George and Annie Grooms], their family members,
              or anyone on their behalf, continue to harass [Mildred Grooms]
              that interferes with her quiet possession and use of the property,
              they shall be forthwith brought before this Court for a proper
              hearing and sanctions.

        In this appeal, the petitioners first challenge the circuit court’s finding that the
respondent has a life estate in the property. Upon review, we find that this Court lacks
jurisdiction to consider the petitioners’ direct appeal of that decision because the final order
on that matter was entered on May 6, 2010. Pursuant to West Virginia Code § 58-5-4 (2012),
a petition for appeal must be filed within four months of the date upon which judgment was
rendered. See also R.A.P. 5 (requiring notice of appeal be filed within thirty days of entry
of judgment being appealed and stating that appeal must be perfected within four months of
date judgment being appealed was entered in office of circuit clerk). Therefore, the
petitioners’ attempt to directly appeal the May 6, 2010, decision of the circuit court is clearly
untimely, and this Court has no jurisdiction to consider it.

       The record shows, however, as discussed above, that on November 30, 2011, the
petitioners filed a motion to modify and/or clarify the circuit court’s May 6, 2010, order,
seeking reconsideration of the circuit court’s decision that the respondent has a life estate in
the subject property. This Court has held:

                      When a party filing a motion for reconsideration does not
              indicate under which West Virginia Rule of Civil Procedure it
              is filing the motion, the motion will be considered to be either
              a Rule 59(e) motion to alter or amend a judgment or a Rule
              60(b) motion for relief from a judgment order. If the motion is
              filed within ten days of the circuit court’s entry of judgment, the

                                               3
              motion is treated as a motion to alter or amend under Rule 59(e).
              If the motion is filed outside the ten-day limit, it can only be
              addressed under Rule 60(b).

Syl. Pt. 2, Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196 W.Va. 692, 474
S.E.2d 872 (1996). Because the petitioners’ motion to modify and/or clarify was filed more
than a year after entry of the May 6, 2010, order, it must be considered under Rule 60(b).2
This Court has held that “[a] motion made pursuant to Rule 60(b), W.Va.R.C.P., does not toll
the running of the appeal time of [four] months provided by West Virginia Code, Chapter 58,
Article 5, Section 4, as amended.” Syl. Pt.1, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d
85 (1974). Yet, “[a]n order denying a motion under Rule 60(b), W.Va.R.C.P., is final and
appealable.” Toler, 157 W.Va. at 778, 204 S.E.2d at 86, syl. pt. 2.

        The circuit court’s March 25, 2013, order that resulted in this appeal contains no
ruling with respect to the petitioners’ Rule 60(b) motion. In fact, there is no mention of the
motion whatsoever in that order. The transcript of the January 23, 2013, hearing that
preceded the March 25, 2013, order does reflect, however, that the circuit court orally denied
the petitioners’ Rule 60(b) motion for reconsideration. This Court has held that “[a]n oral
order has the same force, effect, and validity in the law as a written order. In other words,
the actual physical possession of a written order is not required to effectuate said order.” Syl.
Pt. 2, Moats v. Preston County Comm’n, 206 W.Va. 8, 521 S.E.2d 180 (1999). Therefore,
we find that the petitioners’ appeal of the circuit court’s denial of their Rule 60(b) motion is
properly before the Court.

        We have held that “[a]n appeal of the denial of a Rule 60(b) motion brings to
consideration for review only the order of denial itself and not the substance supporting the
underlying judgment nor the final judgment order.” Toler, 157 W.Va. at 778, 204 S.E.2d at
86; syl. pt. 3. Therefore, “[i]n reviewing an order denying a motion under Rule 60(b),
W.Va.R.C.P., the function of the appellate court is limited to deciding whether the trial court
abused its discretion in ruling that sufficient grounds for disturbing the finality of the
judgment were not shown in a timely manner.” Toler, 157 W.Va. at 778, 204 S.E.2d at 86;
syl. pt. 4. Indeed, “[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.” Toler, 157 W.Va. at 778, 204 S.E.2d at 86; syl. pt. 5.



       2
        Likewise, the petitioners’ pro se motion for reconsideration filed on May 25, 2010,
falls under Rule 60(b).

                                               4
        Upon review, we are unable to find that the circuit court abused its discretion in
denying the petitioners’ Rule 60(b) motion. We have explained that “Rule 60(b) motions
which seek merely to relitigate legal issues heard at the underlying proceeding are without
merit.” Powderidge, 196 W.Va. at 705, 474 S.E.2d at 885. The record indicates that the
petitioners’ motion was simply a request that the court change its prior ruling. Therefore, the
circuit court did not err by denying the motion.

      The petitioners also seek to reverse the March 25, 2013, order of the circuit court on
the basis that it fails to provide sufficient details with respect to the parties’ use and
maintenance of the subject property. We have explained that

              [w]hen this Court reviews challenges to the findings and
              conclusions of the circuit court, a two-prong deferential standard
              of review is applied. We review the final order and the ultimate
              disposition under an abuse of discretion standard, and we review
              the circuit court’s underlying factual findings under a clearly
              erroneous standard.

Syl. Pt. 1, McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996). Upon
review, we find no merit to the petitioners’ argument. As set forth above, the court found
that the petitioners had interfered with the respondent’s use of her life estate and,
accordingly, made rulings to clarify the parties’ respective responsibilities and duties with
regard to the subject property. The record supports the circuit court’s findings. In that
regard, the record shows that evidence was submitted during the January 23, 2013, hearing
establishing that the petitioners had interfered with the respondent’s use the property by, inter
alia, blocking her driveway and preventing respondent’s visitors from parking near her
house. Therefore, the circuit court did not clearly err with regard to the factual findings
contained in its March 25, 2013, order, nor did the circuit court abuse its discretion.

     Accordingly, for the reasons set forth above, the order of the Circuit Court of
Kanawha County entered on March 25, 2013, is affirmed.

                                                                                     Affirmed.




                                               5
ISSUED: March 6, 2014


CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




                                 6
