                              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.
                                                   1

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.
                                             2

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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