                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Calvin T. Odom,
Defendant Below, Petitioner                                                       FILED
                                                                                 June 6, 2014
                                                                             RORY L. PERRY II, CLERK
vs) No. 13-1092 (Jefferson County 12-C-247)                                SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
Partners for Payment Relief, DE III, LLC,
Plaintiff Below, Respondent

                              MEMORANDUM DECISION

        Petitioner Calvin T. Odom, appearing pro se, appeals the September 26, 2013, order of the
Circuit Court of Jefferson County that (1) granted Respondent (Partners for Payment Relief, DE
III, LLC) summary judgment on its complaint alleging unlawful detainer of real property against
petitioner; (2) dismissed petitioner’s counterclaim to have the foreclosure sale set aside; and (3)
denied petitioner’s motion to amend to his counterclaim to include claims for violations of the
West Virginia Consumer Credit Protection Act [“WVCCPA”] and for intentional infliction of
emotional distress. Respondent, by counsel Don C.A. Parker, Bruce M. Jacobs, and Megan E.
McCullough, filed a response. Petitioner filed a reply.

        The 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 that petitioner’s appeal should be dismissed without prejudice for lack
of a final appealable order. For these reasons, a memorandum decision is appropriate under Rule
21 of the Rules of Appellate Procedure.

         On May 2, 2012, respondent filed an unlawful detainer action against petitioner in the
Magistrate Court of Jefferson County alleging that he refused to vacate residential property at 731
Chickamauga Drive, Harpers Ferry, West Virginia. Respondent claimed that it had the right to
possession of the property as a result of a foreclosure sale at which it was the highest bidder.1
Petitioner removed the case to the Circuit Court of Jefferson County where his counsel filed an
amended answer and counterclaim by which petitioner sought to have the foreclosure sale set
aside.

      Subsequently, on September 26, 2013, the circuit court (1) granted respondent summary
judgment on its complaint alleging unlawful detainer of real property against petitioner; 2

       1
           The property was foreclosed under a subordinate deed of trust held by respondent.
       2
         Despite the circuit court’s summary judgment in respondent’s favor, petitioner remains
in possession of the property.
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(2) dismissed petitioner’s counterclaim to have the foreclosure sale set aside; and (3) denied
petitioner’s motion to amend to include claims for violations of the WVCCPA and for intentional
infliction of emotional distress. On October 7, 2013, petitioner, appearing pro se, moved the circuit
court to reconsider its September 26, 2013, order. Because petitioner filed his motion within ten
days of the circuit court’s order, the motion was made pursuant to Rule 59(e) of the West Virginia
Rules of Civil Procedure.3 See Syl. Pt. 6, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d
16 (1995).

        The parties appeared for a status hearing on October 18, 2013, at which time both
respondent and the circuit court acknowledged that petitioner’s motion to reconsider had been
filed pursuant to Rule 59(e). Respondent also moved that it be granted summary judgment on
petitioner’s remaining counterclaim—a claim for damages and attorney’s fees under the West
Virginia Residential Mortgage Lender, Broker and Servicer Act, West Virginia Code §§ 31-17-1
to -20 (hereinafter “Act”). At the hearing’s conclusion, the circuit court gave the parties fifteen
days to file additional pleadings. Petitioner asked, “Then[,] you will make a decision as to whether
summary judgment will be [up]held?” The circuit court answered, “Yes.”

        On November 12, 2013, the circuit court granted respondent summary judgment on
petitioner’s remaining counterclaim finding that a borrower had no remedy under West Virginia
Code § 31-17-17(c) for violation of the Act’s licensing requirements. The November 12, 2013,
order purported to retire the case from the active docket, but the circuit court failed to rule on
petitioner’s Rule 59(e) motion.

       During the preceding month, petitioner filed his appeal from the circuit court’s September
26, 2013, order on October 25, 2013. Petitioner did not appeal the November 12, 2013, order.
Consequently, the only order before this Court is the circuit court’s September 26, 2013, order that
(1) granted respondent summary judgment on its complaint alleging unlawful detainer of real
property against petitioner; (2) dismissed petitioner’s counterclaim to have the foreclosure sale set
aside; and (3) denied petitioner’s motion to amend to include claims for violations of the
WVCCPA and for intentional infliction of emotional distress.

        On appeal, neither party addresses the fact that the circuit court failed to rule on petitioner’s
Rule 59(e) motion. In Syllabus Point 2 of James M.B., this Court held that it “has the inherent
power and duty to determine unilaterally its authority to hear a particular case” and that “[p]arties
cannot confer jurisdiction on this Court directly or indirectly where it is otherwise lacking.” 193
W.Va. at 291, 456 S.E.2d at 18. Pursuant to Syllabus Point 3, “appeals only may be taken from
final decisions of a circuit court.” Id. (citing W.Va. Code § 58-5-1). The Court further held in
Syllabus Point 7 of James M.B. as follows:

        A motion for reconsideration filed within ten days of judgment being entered


        3
          Rule 59(e) provides that “[a]ny motion to alter or amend the judgment shall be filed not
later than 10 days after entry of the judgment.”

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       suspends the finality of the judgment and makes the judgment unripe for appeal.
       When the time for appeal is so extended, its full length begins to run from the date
       of entry of the order disposing of the motion.

193 W.Va. at 292, 456 S.E.2d at 18. In the instant case, the circuit court has yet to dispose of
petitioner’s Rule 59(e) motion. Therefore, this Court finds that (1) the Rule 59(e) motion has
suspended the finality of the September 26, 2013, order making it unripe for appeal; and (2) once
the circuit court rules on the motion, petitioner will have his full appeal time in which to appeal.
See Rule 72, W.V.R.A.P.; James M.B., 193 W.Va. at 295 n. 15, 456 S.E.2d at 22 n. 15.
Accordingly, this Court dismisses petitioner’s appeal without prejudice.

                                                                     Dismissed without Prejudice.


ISSUED: June 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




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