                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Cameron Brown,                                                                    FILED
Plaintiff Below, Petitioner
                                                                              January 8, 2018
                                                                             EDYTHE NASH GAISER, CLERK
vs) No. 17-0176 (Wayne County 16-C-106)                                      SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Grayson Assisted Living, Inc.,
Defendant Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Cameron Brown, by counsel Timothy P. Rosinsky, appeals the Circuit Court of
Wayne County’s January 23, 2017, order denying his “motion for reconsideration” of the circuit
court’s dismissal of his complaint. Respondent Grayson Assisted Living, Inc., by counsel Amy
C. Crossan, filed a response in support of the circuit court’s order. On appeal, petitioner argues
that the circuit court incorrectly interpreted the Wage Payment and Collection Act (the “Act”),
West Virginia Code §§ 21-5-1 to -18, in granting respondent’s motion to dismiss and failed to
consider his entitlement to attorney’s fees in denying his “motion for reconsideration” of that
dismissal.

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

        In July of 2016, petitioner, a former employee of respondent, filed suit against respondent
asserting a claim under the Act. Respondent filed a “Motion to Dismiss for Failure to State a
Claim or for Judgment on the Pleadings.” Respondent argued that petitioner could not recover a
judgment under any set of facts because he pled in his complaint that he had recovered all unpaid
wages and liquidated damages due under the Act. Respondent further argued that attorney’s fees
could not be awarded. Under the express terms of the Act, attorney’s fees may be assessed “in
the event that any judgment is awarded to the plaintiff or plaintiffs[.]” W.Va. Code § 21-5-12(b).
Respondent argued that because petitioner was fully paid, he could not be awarded a judgment,
and attorney’s fees were therefore unavailable.

        A hearing was held on respondent’s motion in September of 2016. The circuit court
found that, because petitioner was paid the disputed amount plus liquidated damages prior to the
filing of the lawsuit, “there was no justiciable issue left unresolved” when petitioner filed his
complaint. By “Opinion Order” entered on October 3, 2016, the circuit court granted
respondent’s motion and dismissed petitioner’s complaint.

                                                1

        Over one month after the entry of the “Opinion Order,” petitioner filed a “Motion for
Reconsideration” (“Rule 60(b) motion”).1 Petitioner sought reconsideration of the dismissal on
the ground that the Act’s “fee shifting” provision would be “rendered meaningless by an
employer’s proffer of wages [at any stage of the proceeding before a jury verdict is announced
and an award is made].” Respondent urged denial of petitioner’s motion because petitioner failed
to designate a rule pursuant to which he was moving the court and because he merely reargued
the facts and theories upon which the circuit court already ruled. Petitioner, therefore, filed an
“Amended Response” wherein he set forth that West Virginia Rule of Civil Procedure 60(b)(6)
supplied the basis for his motion.2 Petitioner argued that a justiciable controversy remained
because attorney’s fees were recoverable under the Act but were not paid.

         The circuit court found that petitioner failed to satisfy any reason enumerated within Rule
60(b) of the West Virginia Rules of Civil Procedure to justify relief from the court’s order
granting respondent’s motion to dismiss. The circuit court further found that petitioner failed to
produce new evidence or arguments that were not already considered during the briefing and
argument on respondent’s motion to dismiss. These rulings were memorialized in the circuit
court’s “Order Denying [Petitioner’s] Motion for Reconsideration” entered on January 23, 2017.
It is from this order that petitioner appeals.

        We have previously held that “[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.” Syl. Pt. 4, Toler v. Shelton, 157 W.Va. 778, 204
S.E.2d 85 (1974). Additionally, “[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, 175 W.Va. at 778, 204 S.E.2d at 86, Syl. Pt. 5.



       1
         As we have repeatedly noted, the West Virginia Rules of Civil Procedure do not
explicitly authorize a “motion for reconsideration.” See Builders’ Serv. & Supply Co. v.
Dempsey, 224 W.Va. 80, 83, 680 S.E.2d 95, 98 (2009). Accordingly, we will use the correct
terminology in referring to petitioner’s motion. See also Syl. Pt. 2, in part, Law v. Monongahela
Power Co., 210 W.Va. 549, 558 S.E.2d 349 (2001) (citation omitted) (“A motion which would
otherwise qualify as a Rule 59(e) motion [to alter or amend a judgment] that is not filed and
served within ten days of the entry of judgment is a Rule 60(b) motion regardless of how
styled[.]”)
       2
         Rule 60(b)(6) of the West Virginia Rules of Civil Procedure provides that “[o]n 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: . . . (6) any other reason
justifying relief from the operation of the judgment.”




                                                 2

        On appeal, petitioner advances two arguments. Petitioner’s first argument is that the
circuit court erred in granting respondent’s motion to dismiss because it incorrectly interpreted
the Act and failed to adopt the facts as pled in the complaint. Petitioner, however, failed to timely
appeal the circuit court’s dismissal of his complaint. Accordingly, we decline to address
arguments relative to the dismissal of petitioner’s complaint.3 Indeed, the “Scheduling Order”
entered in this matter makes clear that “[t]he only assignments of error considered on appeal will
be those arising from the January 23, 2017, order.” Therefore, the only assignments of error that
will be considered on appeal are those arising from the denial of petitioner’s Rule 60(b) motion.

        Petitioner’s second assignment of error concerns the denial of his Rule 60(b) motion.
Petitioner contends that his motion should have been granted due to the circuit court’s failure to
consider petitioner’s entitlement to attorney’s fees.

        Petitioner’s Rule 60(b) motion urged the circuit court to reconsider its ruling due to its
failure to find that petitioner was entitled to attorney’s fees. These same arguments were
advanced by petitioner in response to respondent’s motion to dismiss his complaint. “Where the
motion is nothing more than a request that the court change its mind, it is not authorized by Rule
60(b).” Dempsey, 224 W.Va. at 85, 680 S.E.2d at 100 (citation omitted). “In other words, a Rule
60(b) motion is simply not an opportunity to reargue facts and theories upon which a court has
already ruled.” Dempsey, 224 W.Va. at 85, 680 S.E.2d at 100 (citations omitted). Because
petitioner’s Rule 60(b) motion simply reargued his purported entitlement to attorney’s fees, we
find no abuse of discretion in the circuit court’s finding that petitioner “failed to produce any
new evidence or arguments that were not already considered” or its denial of his Rule 60(b)
motion.

       For the foregoing reasons, the circuit court’s January 23, 2017, order denying petitioner’s
Rule 60(b) motion is hereby affirmed.

                                                                                          Affirmed.
ISSUED: January 8, 2018

CONCURRED IN BY:

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

       3
         “A motion made pursuant to Rule 60(b), W.Va. R.C.P., does not toll the running of the
appeal time[.]” Syl. Pt. 1, in part, Toler, 157 W.Va. at 778, 204 S.E.2d at 86. Further, “[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.



                                                 3

