                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Anne L. Ayers,                                                                       FILED
Plaintiff Below, Petitioner                                                       July 30, 2020
                                                                                EDYTHE NASH GAISER, CLERK
vs) No. 19-0783 (Berkeley County 16-C-220)                                      SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


State Farm Insurance, LLC Corp. Offices,
Holly Garver, Adjustor,
Michael Steele, Adjustor,
State Farm Insurance Co., LLC,
Charles Piccirillo,
Defendants Below, Respondents


                               MEMORANDUM DECISION


        Petitioner Anne L. Ayers, by counsel Jeremy B. Cooper, appeals the August 6, 2019, order
of the Circuit Court of Berkeley County denying her petition for relief from that Court’s May 1,
2019, order granting summary judgment in favor of Respondents State Farm Insurance Co., LLC;
State Farm Insurance, LLC Corp. Offices; Holly Garver, Adjustor; Michael Steele, Adjustor; State
Farm Insurance Co., LLC; and Charles Piccirillo (together “State Farm”).1 Respondents, by
counsel Charles S. Piccirillo and Carl W. Shaffer, filed a response in support of the circuit court’s
order.

       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 affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

       A leaking hot water tank in petitioner’s home damaged her property. Petitioner hired
CRDN of Baltimore and Service Master of Martinsburg to do the remediation work. State Farm
Fire and Casualty Co., petitioner’s homeowner’s insurance carrier, paid petitioner $151,456.98 for
her water loss claim. Petitioner claimed this amount was insufficient as some of her personal
property was stolen, lost, or allowed to be lost by CRDN of Baltimore and Service Master of
Martinsburg whom she claims were working at State Farm’s behest. State Farm refused to pay

       1
          In Respondent State Farm Fire and Casualty Co.’s answer to Petitioner Ayers’ complaint,
it notes that petitioner wrongfully identified it as “State Farm Insurance Co., LLC” and “State
Farm Insurance, LLC Corp. Offices.”
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petitioner for her theft claim due to a lack of proof of any theft.

        On May 9, 2016, petitioner, who was self-represented below, brought this action against
State Farm by filing various complaints and other documents. From these writings, the circuit court
identified five claims for relief: (1) common law bad faith under Hayseeds, Inc. v. State Farm Fire
& Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986), regarding the handling of petitioner’s claim; (2)
statutory bad faith under the Unfair Trade Practices Act, West Virginia Code § 33-11-4(9); (3)
breach of contract; (4) vicarious liability for the actions of co-defendants CRDN of Baltimore and
Service Master of Martinsburg; and (5) punitive damages. State Farm answered (1) disclaiming
responsibility for CRDN of Baltimore’s and Service Master’s conduct; (2) denying that
petitioner’s homeowner’s insurance contract was breached; (3) denying that petitioner’s water
damage claim was prematurely closed; and (4) denying the applicability of any of the other theories
of liability advanced by petitioner. Petitioner’s “Response” included numerous appendices
documenting the personal property she claimed was lost or had been stolen during the remediation
process. Petitioner thereafter supplemented the appendices until there were more than one
thousand pages of photographs, checks, receipts, ledgers, letters, and other documents.

        The circuit court entered a scheduling order that was modified many times due to
petitioner’s numerous motions. State Farm claims that petitioner’s motions were cryptic and
difficult to follow. State Farms also claims petitioner submitted numerous old photographs, check
registers, and other documents, each purportedly evidencing items, many of which were decades
old, that were allegedly lost or stolen during the remediation of her property. State Farm avers that
petitioner presented no evidence that the items were stolen and, instead, stated only that she could
no longer find the items. Finally, State Farm asserts that petitioner focused on conspiracy theories
that were not based in fact.

       Throughout the case, both CRDN of Baltimore and Service Master of Martinsburg filed
multiple motions to dismiss them from this case on procedural grounds. However, the court
eventually granted both CRDN of Baltimore’s and Service Master of Martinsburg’s motions to
dismiss on statute of limitations grounds.2

         Thereafter, State Farm filed a motion for summary judgment. State Farm argued that (1)
petitioner failed to produce evidence that would support a triable issue of fact, i.e., she could not
support her claim that State Farm was liable for petitioner’s allegedly lost or stolen personal
property; and (2) petitioner failed to produce evidence of any relationship between State Farm and
CRDN of Baltimore or Service Master of Martinsburg to justify a respondeat superior theory of
liability. State Farm further argued that the court’s dismissal of petitioner’s claims against CRDN
of Baltimore and Service Master of Martinsburg barred State Farm’s liability for their conduct.

        Regarding State Farm’s motion for summary judgment, the circuit court instructed
petitioner to consider Rule 56 of the Rules of Civil Procedure in her response and to set forth facts


       2
         Petitioner appealed the circuit court’s dismissal of CRDN of Baltimore and Service
Master of Martinsburg to this Court, but the respondents to that appeal filed a motion to dismiss
that was granted by the Court. Therefore, the appeal was not considered on the merits.


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and argument demonstrating a genuine issue of material fact for trial. Petitioner thereafter filed her
response, but she failed to comply with the circuit court’s instructions.

      By order entered May 1, 2019, the circuit court granted State Farm’s motion for summary
judgment on all claims. Based upon the record presented, the circuit court found as follows:

                [Petitioner] claims that State Farm did not compensate her for a vast number
       of items that she alleges were either lost due to water damage or theft. [Petitioner]
       attempts to support her claim with volumes of decades-old photographs, receipts,
       and “ledgers” (among other things) purportedly showing ownership of items from
       clothing to binder clips. However, showing that she perhaps once owned an item
       fails to prove that she no longer has it. It is not proof that it was destroyed or stolen
       during the relevant time period. No “reasonable inferences” in [petitioner’s] favor
       can be drawn from her bare allegations[.]

               Moreover, many of [petitioner’s] allegations against State Farm defy
       credulity. For example, [petitioner] suggests that State Farm is party to a conspiracy
       to cover up the alleged murder of her sister in California by a possible serial killer.
       She also insists that State Farm has clandestinely followed and surveilled her,
       bribed her “secretary” to interfere with her efforts to collect on her claim, and hired
       police officers or those purporting to be police officers to follow and harass her.
       There is simply no evidence supporting any of this pure speculation, and,
       [petitioner’s] theories are light years beyond the realm of reasonable probability.

              . . . . From the admissible facts advanced by [petitioner], a jury could not
       draw inferences in [petitioner’s] favor sufficient to meet her burden of production.
       A court is not required to summons . . . citizens to indulge [petitioner’s]
       unsubstantiated musings.

               [Petitioner also] argues that State Farm is vicariously liable for the alleged
       theft by . . . CRDN of Baltimore and Service Master [of Martinsburg], the entities
       that performed remediation work on [petitioner’s] home associated with her water
       damage. Vicarious liability may be imposed where (1) a master-servant or
       employment relationship exists and (2) the servant or employee was acting within
       the scope of employment when he commits a tort. See Courtless v. Jolliffe, 507
       S.E.2d 136, 139-40 (W. Va. 1998); see also Syl Pts. 5, 7, id. No reasonable jury
       could conclude that either element is present in this case.

         On May 16, 2019, the circuit clerk received petitioner’s response to the court’s May 1,
2019, order granting summary judgment. Petitioner titled her response “Objections and motion
for the judge to correct, complete, reverse, or nullify his dismissal with prejudice based on the false
ex parte hearsay & motion for judge to recuse himself and declare a mistrial.”

        Rule 59(e) of the West Virginia Rules of Civil Procedure requires any motion challenging
a judgment to “be filed not later than 10 days after entry of the judgment.” The court found that
the certificate of service for petitioner’s document shows it was placed in the mail, i.e., “served”

                                                  3
upon the circuit clerk and counsel, on May 13, 2019, eight court days after the entry of the court’s
May 1, 2019, order. The document was time stamped or “filed” by the circuit clerk on May 16,
2019, eleven court days after the entry of the May 1, 2019, order. Because petitioner’s motion
challenging the summary judgment order was filed more than ten days after entry of the judgment
in this case, the circuit court refused to consider the motion under Rule 59(e). Instead, the circuit
court deemed petitioner’s motion to be a motion to alter or amend judgment under Rule 60(b). 3
The circuit court then examined petitioner’s case for any mistake, excusable neglect, newly
discovered evidence, or any other reason for relief under Rule 60(b). Finding no basis, the circuit
court denied petitioner’s motion to alter or amend its summary judgment order by order entered
August 6, 2019.

        We review the circuit court’s order for an abuse of discretion. This Court has held that “[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.” Syl. Pt. 5, Toler v. Shelton, 157 W. Va. 778,
204 S.E.2d 85 (1974).

        Petitioner raises three assignments of error on appeal. Petitioner first argues that the circuit
court erred by construing her motion for relief as arising under Rule 60(b) of the West Virginia
Rules of Civil Procedure rather than under Rule 59(e) of those Rules.

        The current and relevant version of Rule 59(e) of the West Virginia Rules of Civil
Procedure, adopted in 1998, provides that “[a]ny motion to alter or amend the judgment shall be
filed not later than ten days after entry of the judgment.” (Emphasis added.) Petitioner concedes
that “Rule 59(e) contains a strict ten-day limit[.]” Savage v. Booth, 196 W. Va. 65, 68 n.5, 468
S.E.2d 318, 321 n.5 (1996). Petitioner’s brief, however, repeatedly cites to cases interpreting
previous, now-superseded versions of Rule 59(e). Those outdated versions of the rule required
motions to be “served” rather than “filed” no later than ten days after entry of judgment. For
example, as we said in 1996 in Savage:


       3
         Rule 60(b) of the West Virginia Rules of Civil Procedure provides, in part, as
       follows:

       Mistakes; inadvertence; excusable neglect; unavoidable cause; newly discovered
       evidence; fraud, etc. – On motion and upon such terms as are just, the court may
       relieve a party or a party’s legal representative from a final judgment, order, or
       proceeding for the following reasons: (1) Mistake, inadvertence, surprise,
       excusable neglect, or unavoidable cause; (2) newly discovered evidence which by
       due diligence could not have been discovered in time to move for a new trial under
       Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic),
       misrepresentation, or other misconduct of an adverse party; (4) the judgment is
       void; (5) the judgment has been satisfied, released, or discharged, or a prior
       judgment upon which it is based has been reversed or otherwise vacated, or it is no
       longer equitable that the judgment should have prospective application; or (6) any
       other reason justifying relief from the operation of the judgment.


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       The time of a motion’s service controls whether a motion challenging a judgment
       is a Rule 60(b) or Rule 59(e) motion. Such a motion, if served within ten days of a
       final judgment is a Rule 59(e) motion. Conversely, a motion served more than ten
       days after a final judgment is a Rule 60(b) motion.

196 W. Va. at 68, 468 S.E.2d at 321 (emphasis added). Petitioner essentially contends this Court
should ignore the requirement in the now-effective 1998 version of Rule 59(e) that a motion be
filed within ten days, and instead permit consideration of motions served within ten days as was
permitted under prior iterations of the rule. Petitioner notes that the certificate of service attached
to petitioner’s motion to alter or amend shows it was mailed to the circuit clerk and counsel on
May 13, 2019, eight business days after the May 1, 2019, entry of the order granting summary
judgment to State Farm. Petitioner therefore claims the motion was timely.

        We reject petitioner’s argument, because the motion was not received and filed by the
circuit clerk until May 16, 2019. In 1998, this Court amended Rule 59(e) and replaced the word
“served” with the word “filed.” Counting the days as prescribed by Rule 6(a) of the Rules of Civil
Procedure, petitioner filed her motion to alter or amend judgment eleven court days after the entry
of the order granting summary judgment to State Farm. Thus, because the motion was not filed
within ten days of the entry of the order, the motion could only be considered by the circuit court
under Rule 60(b) of the Rules of Civil Procedure. Accordingly, we find no error.

        In petitioner’s second assignment of error, she argues that the circuit court erred by granting
summary judgment to State Farm because the court’s order incorrectly asserts that petitioner did
not present a “scintilla of evidence” to back up her claims. Petitioner highlights the fact that she
submitted more than a thousand pages documenting her lost or stolen property, which she asserts
is dramatically more than a scintilla of evidence. Petitioner notes that her response alone contained
dozens of spread sheets, photographs, affidavits, receipts, and cancelled checks. Further, petitioner
asserted that State Farm paid her vastly less than what it should have paid, and this fact alone
justified sending her case to a jury.

        Our law is clear 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.” Syl. Pt. 3, Toler, 157 W. Va. at 778, 204 S.E.2d
at 86. Petitioner’s motion merely reiterated her allegations of criminal conspiracies and ex parte
communications, cited inapposite case law and legal principles, and attempted to relitigate
summary judgment anew. In her brief on appeal, she again seeks to challenge the substance of the
circuit court’s summary judgment ruling. Under Toler, we are precluded from considering
petitioner’s challenge to the circuit court’s summary judgment ruling. Thus, we reject this
assignment of error.

        Finally, in petitioner’s third assignment of error, she argues that the circuit court abused its
discretion in denying relief under Rule 60(b). Petitioner argues that, to the extent the circuit court’s
award of summary judgment to State Farm was based on the manner in which petitioner presented
her evidence, it could be deemed “mistake,” “inadvertence,” or “excusable neglect” subject to
relief under Rule 60(b). Petitioner also asserts a litany of unanswered motions, many of which

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were related to unfulfilled discovery requests, which she claims might support relief under Rule
60(b). As her final plea, petitioner notes that Rule 60(b) “is to be liberally construed for the
purpose of accomplishing justice and . . . was designed to facilitate the desired legal objective that
case are to be decided on the merits.” Syl. Pt. 6, in part, Toler, 157 W. Va. at 778, 204 S.E.2d at
86.

         We disagree and find that the circuit court did not abuse its discretion in denying
petitioner’s motion to alter or amend its grant of summary judgment in favor of State Farm. In
response to State Farm’s motion for summary judgment, petitioner was required to “identify
specific facts in the record and articulate the precise manner in which that evidence supports its
claims.” Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196 W. Va. 692, 699, 474
S.E.2d 872, 879 (1996). As the circuit court found, petitioner’s often-illegible ledgers, receipts,
and decades-old photographs were insufficient to create a triable issue of destruction or theft
because they were unaccompanied by any context or corroborating evidence. Accordingly, the
circuit court found that, because no “reasonable inferences” “within the range of reasonable
probability” could be drawn in petitioner’s favor, summary judgment in State Farm’s favor was
proper. Furthermore, petitioner failed to offer any proof that State Farm maintained any rights to
supervise the work of CRDN of Baltimore or of Service Master of Martinsburg. Vicarious liability
could only be imposed upon State Farm if petitioner made a showing that State Farm had “the right
to control or supervise the work in question[.]” Syl. Pt. 2, Spencer v. Travelers Ins. Co., 148 W.
Va. 111, 133 S.E.2d 735 (1963). Stated simply, petitioner failed to identify any specific ground
for relief under Rule 60(b), and we see nothing in the record to show that the circuit court abused
its discretion when it denied petitioner’s motion to alter or amend its summary judgment order.

       Accordingly, for the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: July 30, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Beth Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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