                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                  FILED
Thomas F. Basile,                                                            February 17, 2017
Plaintiff Below, Petitioner                                                     RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
vs) No. 16-0117 (Kanawha County 12-C-1551)

The Calwell Practice, PLLC and
William Stuart Calwell, Jr.,
Defendants Below, Respondents


                              MEMORANDUM DECISION
       Petitioner Thomas F. Basile, pro se, appeals four orders of the Circuit Court of Kanawha
County. In the first order, entered November 6, 2013, the circuit court (1) dismissed as moot
Respondents The Calwell Practice, PLLC and William Stuart Calwell, Jr.’s (collectively,
“respondent”) motion for a declaratory judgment that petitioner had been paid in full by David
Ford or, in the alternative, an injunction requiring petitioner to act in good faith by accepting
payment from David Ford; and (2) denied petitioner’s motion for sanctions pursuant to Rule 11 of
the West Virginia Rules of Civil Procedure against respondent for filing its motion for a
declaratory judgment or injunctive relief. In the second order, entered March 11, 2014, the circuit
court denied petitioner’s motion for relief from its November 6, 2013, order. In the third order,
entered June 23, 2015, the circuit court dismissed petitioner’s civil action against respondent. In
the fourth order, entered January 6, 2016, the circuit court denied petitioner’s motion for relief
from its June 23, 2015, dismissal order. Respondent, by counsel Robert M. Bastress, III, filed a
response in support of the circuit court’s orders. 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 (1) petitioner’s appeal of the circuit court’s November 6, 2013,
March 11, 2014, and June 23, 2015, orders should be dismissed; and (2) there is no substantial
question of law or prejudicial error regarding the circuit court’s January 6, 2016, order. For these
reasons, a memorandum decision (1) dismissing petitioner’s appeal of the circuit court’s
November 6, 2013, March 11, 2014, and June 23, 2015, orders; and (2) affirming the circuit
court’s January 6, 2016, order is appropriate under Rule 21 of the Rules of Appellate Procedure.



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         In Ford v. The Calwell Practice, No. 11-0882 (W.Va. Supreme Court, June 8, 2012)
(memorandum decision), at 5, this Court affirmed a May 3, 2011, order of the Circuit Court of
Logan County granting petitioner’s motion to modify a previous allocation of attorney’s fees
among plaintiff’s attorneys following the settlement of a personal injury action.1 In its May 3,
2011, order, the Logan County Circuit Court left undisturbed the share of attorney’s fees allocated
to respondent, but decreased the share of the attorney’s fees belonging to David Ford by 2% and
increased the share of the attorney’s fees belonging to petitioner by a corresponding 2%. As a
result, the allocation of attorney’s fees was, as follows: 55% to respondent; 31% to Mr. Ford; and
14% to petitioner.

       After the entry of the May 3, 2011, order, but before this Court’s affirmation of that order
in Ford, petitioner demanded that respondent pay him $40,000 because Mr. Ford failed to pay him
the 2% Mr. Ford owed him in attorney’s fees, pursuant to an agreement entered into by petitioner
and respondent.2 The parties’ agreement provided, in pertinent part, as follows:

       In the event the [Logan County Circuit Court] eventually shifts the percentages of
       the attorney fee upward for [petitioner] and downward for Ford and/or if the court
       sanctions Ford monetarily and awards those monetary sanctions to [petitioner],
       then [respondent] will pay [petitioner] whatever amount the court awards
       [petitioner], up to $40,000, by cashier’s check, within 30 days of receiving written
       notice of said ruling, by having said cashier’s check available for [petitioner] to
       pick-up at the law office of DiTrapano, Barrett, & DiPiero; provided that Ford does
       not himself pay to [petitioner] within that same 30-day time period, whatever
       amount the court awards [petitioner].

At that time, respondent objected to paying petitioner $40,000 on the ground that the May 3, 2011,
order was not yet final because Mr. Ford was appealing it. While petitioner did not agree that the
parties’ agreement required that the order be final, he did not file the instant civil action alleging
breach of contract during the pendency of the appeal in Ford.

       Following the issuance of this Court’s memorandum decision on June 8, 2012, affirming
the May 3, 2011, order, petitioner once again demanded that respondent pay him $40,000,
pursuant to their agreement. When respondent did not pay, petitioner filed the instant action on
August 1, 2012, in the Circuit Court of Kanawha County alleging that respondent breached the

       1
       We take judicial notice of the record in that case, Ellis v. Hare, Logan County Circuit
Court Case No. 08-C-297.
       2
         Petitioner and respondent entered into their agreement on December 9, 2010, following
the Logan County court’s initial allocation of the attorney’s fees in an order entered November 10,
2010. Respondent wanted the agreement with petitioner because petitioner was objecting to the
distribution of the attorney’s fees from an escrow account and respondent desired to have its share
of the attorney’s fees in time for Christmas that year.


                                                  2
agreement and fraudulently induced him to enter into it with a promised payment that it never
intended to make. 3 In response, respondent filed a motion for a declaratory judgment that
petitioner had been paid in full by Mr. Ford or, in the alternative, an injunction requiring petitioner
to act in good faith by accepting payment from Mr. Ford on August 3, 2016. Petitioner filed a
response to respondent’s motion on August 6, 2016.

        On August 15, 2016, petitioner filed an amended complaint, which added claims that
respondent breached the confidentiality clause in the parties’ agreement by disclosing the same to
Mr. Ford’s attorney on or about August 8, 2012, and that respondent engaged in abusive process
by filing its motion for a declaratory judgment or injunctive relief. Respondent filed a motion to
dismiss the amended complaint on September 5, 2012.

        Subsequently, on January 25, 2013, petitioner filed a motion for sanctions pursuant to Rule
11 of the Rules of Civil Procedure against respondent for filing its motion for a declaratory
judgment or injunctive relief. Following a April 16, 2013, hearing, the Kanawha County Circuit
Court (1) dismissed respondent’s motion for a declaratory judgment or injunctive relief as moot;
and (2) denied petitioner’s Rule 11 motion. With regard to the motion for a declaratory judgment
or injunctive relief, the Kanawha County Circuit Court found that it was rendered moot by the fact
that petitioner accepted the full amount owed by Mr. Ford, or $74,504.86, following a December
10, 2012, order entered by the Logan County Circuit Court calculating the interest owed on the
amount.4 With regard to petitioner’s Rule 11 motion, the Kanawha County Circuit Court found
that such motion was without merit because respondent filed its motion for a declaratory judgment
or injunctive relief based on the reasonable belief that petitioner could collect $40,000 from
respondent and then proceed against Mr. Ford for the full amount owed by Mr. Ford. Petitioner
filed a motion for relief from the Kanawha County Circuit Court’s November 6, 2013, denial of his
Rule 11 motion on November 22, 2013. On March 11, 2014, the Kanawha County Circuit Court
denied petitioner’s motion for relief from the November 6, 2013, order.

        Following a change of judges due to retirement, the Kanawha County Circuit Court
mistakenly dismissed petitioner’s civil action against respondent due to alleged inactivity by an
order entered March 25, 2015. Petitioner filed a motion to reinstate his action on April 8, 2015. At
a May 19, 2015, hearing, the Kanawha County Circuit Court acknowledged its error and reinstated
the action. The Kanawha County Circuit Court also noted that respondent filed a renewed motion
to dismiss petitioner’s action on April 28, 2015. The Kanawha County Circuit Court directed
petitioner to file a response to the renewed motion within ten days and directed both parties to file
proposed findings of fact and conclusions of law within fifteen days of petitioner’s filing of his
response. The Kanawha County Circuit Court indicated that it would set a hearing for “further
argument” on respondent’s renewed motion to dismiss only if necessary. Petitioner made no
objection to the Kanawha County Circuit Court’s directives and subsequently filed a response to

       3
           Both parties reside in Kanawha County, where they entered into their agreement.
       4
        The Logan County Circuit Court found it necessary to enter its December 10, 2012, order
because petitioner and Mr. Ford were disputing the interest on the amount owed by Mr. Ford.

                                                  3
the renewed motion on June 3, 2015. Neither party filed proposed findings of fact and conclusions
of law.

         By order entered June 23, 2015, the Kanawha County Circuit Court dismissed petitioner’s
civil action finding that the exhibits attached to his amended complaint and the prior orders entered
in both the instant case and the Logan County action showed that the allegations set forth in the
amended complaint were insufficient to sustain the claims therein.5 First, the Kanawha County
Circuit Court found that the parties’ agreement did not permit petitioner to collect $40,000 from
respondent and then proceed against Mr. Ford for the full amount owed by Mr. Ford and that, as
reflected in the court’s November 6, 2013, order, in December of 2012, petitioner accepted the full
amount owed from Mr. Ford. Second, with regard petitioner’s claim that respondent breached the
agreement’s confidentiality clause, the Kanawha County Circuit Court found that the filing of
petitioner’s complaint (which included the agreement as an attached exhibit) made the agreement
public. Third, the Kanawha County Circuit Court found that petitioner’s fraudulent inducement
claim was actually another breach of contract claim on which relief could not be granted for
reasons already stated. Regarding petitioner’s sub-claim that respondent conspired with Mr. Ford
to evade its obligation under the parties’ agreement to pay petitioner $40,000, the Kanawha
County Circuit Court found that petitioner failed to allege that he relied on a fraudulent act
undertaken by them. Finally, the Kanawha County Circuit Court found that relief could not be
granted on petitioner’s claim that respondent engaged in abusive process by filing its motion for a
declaratory judgment or injunctive relief because, as reflected in the court’s November 6, 2013,
order, respondent filed its motion based on the reasonable belief that petitioner would collect
$40,000 from respondent and then would proceed against Mr. Ford for the full amount owed by
Mr. Ford.

        Petitioner filed a motion for relief from the Kanawha County Circuit Court’s June 23,
2015, dismissal order on July 13, 2015. At a December 11, 2015, hearing on petitioner’s motion,
he addressed arguments that he asserted that the Kanawha County Circuit Court failed to address
in its dismissal order. The Kanawha County Circuit Court indicated that it was aware of
petitioner’s arguments, but found them to be without merit. Respondent argued that petitioner’s
motion presented “nothing new” and that the dismissal order was “correct and sound in its
reasoning.” The Kanawha County Circuit Court ruled that it understood that petitioner
“disagree[d] with the [c]ourt’s application of the law and the facts,” but that it was going to deny

       5
          The Kanawha County Circuit Court’s consideration of the exhibits attached to petitioner’s
amended complaint and the prior orders entered in both the instant case and the personal injury
action in the Logan County Circuit Court was proper under this Court’s decision in Forshey v.
Jackson, 222 W.Va. 743, 671 S.E.2d 748 (2008). In Syllabus Point 1 of Forshey, this Court held
that “[a] circuit court ruling on a motion to dismiss under Rule 12(b)(6) of the . . . Rules of Civil
Procedure may properly consider exhibits attached to the complaint without converting the motion
to a Rule 56 motion for summary judgment.” Id. W.Va. at 744, 671 S.E.2d at 749. The Court in
Forshey further stated that, in ruling on such a motion, a court is permitted to “consider matters
that are susceptible to judicial notice.” Id. W.Va. at 747, 671 S.E.2d at 752 (internal quotations and
citations omitted).

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his motion for relief from the dismissal order. In its January 6, 2016, order, denying the motion, the
Kanawha County court found that “[t]here is nothing of any consequence presented in the . . .
motion that was not previously before the [c]ourt in its consideration of [respondent’s renewed
motion to dismiss].”

        On February 5, 2016, petitioner filed a notice of appeal stating that he was appealing
the following orders of the Kanawha County Circuit Court: (1) the November 6, 2013, order (a)
dismissing as moot respondent’s motion for a declaratory judgment or injunctive relief; and (b)
denying petitioner’s Rule 11 motion for sanctions against respondent for filing its motion for a
declaratory judgment or injunctive relief; (2) the March 11, 2014, order denying petitioner’s
motion for relief from the November 6, 2013, order; (3) the June 23, 2015, order dismissing
petitioner’s civil action against respondent; and (4) the January 6, 2016, order denying petitioner’s
motion for relief from the June 23, 2015, dismissal order. However, this Court’s February 29,
2016, scheduling order reflects that the only order being appealed was the order “entered on
January 6, 2016.”

        We first address petitioner’s contention that this Court has jurisdiction to accept his appeal
with regard to the circuit court’s November 6, 2013, March 11, 2014, and June 23, 2015, orders.
While respondent does not raise this issue, we have “a responsibility sua sponte to examine the
basis of [our] own jurisdiction.” Syl. Pt. 1, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d
16 (1995); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (same).
Here, we find that both the circuit court’s November 6, 2013, order and its June 23, 2015, dismissal
order were final appealable orders at the time of their entry. Taking the last order first, petitioner
does not dispute that the June 23, 2015, dismissal order was a final order because he notes that the
circuit court included a handwritten notation that his civil action was dismissed “with prejudice.”

        While petitioner labeled his Rule 60(b) motion for relief from judgment as a motion to alter
or amend the June 23, 2015, dismissal order under Rule 59(e), we find that, because this motion
was not filed until July 13, 2015, it was three days past the ten-day deadline for filing Rule 59(e)
motions.6 Thus, we find that the filing of petitioner’s July 13, 2015, motion did not toll the running
of the time in which he had to appeal the June 23, 2015, dismissal order. See Syl. Pt. 1, Toler v.
Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974) (holding that, unlike motions filed pursuant to Rule
59(e), Rule 60(b) motions do not toll running of statutory appeal period on the underlying order).
Therefore, petitioner had four months from the dismissal order’s entry on June 23, 2015, to appeal
that order, but failed to do so.7 Accordingly, we conclude that this Court does not have jurisdiction
to consider petitioner’s appeal of the June 23, 2015, dismissal order. See W Va. Dept. of Energy v.
Hobet Mining and Construction Co., 178 W.Va. 262, 264, 358 S.E.2d 823, 825 (1987) (finding


       6
         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.”
       7
        Rule 5(f) of the West Virginia Rules of Appellate Procedure and West Virginia Code §
58-5-4 both provide that there is a four-month period to appeal a final judgment or order.

                                                  5
that “[the] failure to file a timely appeal presents a jurisdictional infirmity precluding the court
from accepting the appeal”)

        With regard to the orders entered in 2013 and 2014, petitioner contends that the circuit
court’s November 6, 2013, order denying his Rule 11 motion for sanctions was not a final
appealable order at the time of its entry. A final order is one that “terminates the litigation between
the parties on the merits . . . and leaves nothing to be done but to enforce . . . what has been
determined.” James M.B., 193 W.Va. at 291, 456 S.E.2d at 18, syl. pt. 3. In its November 6, 2013,
order, the circuit court not only denied petitioner’s Rule 11 motion, but also dismissed
respondent’s motion for a declaratory judgment or injunctive relief because it found that the issue
raised in respondent’s motion had been rendered moot by subsequent events. In its motion,
respondent requested an order enjoining petitioner to either accept payment by Mr. Ford or
acknowledge that he could be paid by Mr. Ford. The circuit court found that respondent’s request
for an injunction was no longer an issue between the parties because, by the time it heard
respondent’s motion, petitioner had accepted payment of the full amount owed from Mr. Ford.
Therefore, we find that the November 6, 2013, order terminated litigation regarding respondent’s
request for an injunction and left nothing else to be done concerning that request given the fact that
it had been rendered moot.8

         While petitioner labeled his Rule 60(b) motion for relief from the circuit court’s November
6, 2013, denial of his Rule 11 motion as a motion to alter or amend the judgment under Rule 59(e),
we find that, because the motion was not filed until November, 22, 2013, it was filed past the
ten-day deadline for filing Rule 59(e) motions. Thus, we find that the filing of petitioner’s
November, 22, 2013, motion did not toll the running of the time in which he had to appeal the
November 6, 2013, denial of his Rule 11 motion. See Toler, 157 W.Va. at 778, 204 S.E.2d at 86,
syl. pt. 1. Therefore, petitioner had four months from the entry of the November 6, 2013, order to
appeal it, but failed to do so. Accordingly, we conclude that this Court does not have jurisdiction to
consider petitioner’s appeal of the denial of his Rule 11 motion. See Hobet Mining, 178 W.Va. at
264, 358 S.E.2d at 825. We likewise find that we do not have jurisdiction to consider petitioner’s
appeal of the circuit court’s March 11, 2014, order denying his Rule 60(b) motion for relief from
the circuit court’s November 6, 2013, order because, while the denial of the Rule 60(b) motion is



       8
         In its November 6, 2013, order, the circuit court did not foreclose respondent from being
able to file a motion for attorney’s fees and costs in defending against petitioner’s Rule 11 motion.
However, the circuit court expressly found that the issue of respondent’s attorney’s fees and costs
was “not properly before it” because no such motion had yet been filed. Moreover, in labeling his
motion seeking modification of the November 6, 2013, order, as a motion under Rule 59(e) and
Rule 60(b), we find that petitioner conceded at the trial court level that the order was a final order.
See James M.B., 193 W.Va. at 293, 456 S.E.2d at 20 (describing motion pursuant to Rule 59(e) as
a post-judgment motion); Syl. Pt. 3, Hubbard v. State Farm Indemnity Co., 213 W.Va. 542, 584
S.E.2d 176 (2003) (holding that interlocutory orders should not be reviewed under Rule 60(b)).


                                                  6
itself a final appealable order,9 petitioner failed to appeal the March 11, 2014, order within four
months of its entry.

        As reflected by our February 29, 2016, scheduling order, petitioner’s appeal of the circuit
court’s January 6, 2016, order denying his Rule 60(b) motion for relief from the circuit court’s
June 23, 2015, dismissal order is the only appeal properly before us. We find that petitioner
perfected his appeal of this order in accordance with Rule 5(f) of the West Virginia Rules of
Appellate Procedure and West Virginia Code § 58-5-4, both of which allow an extension of the
four-month appeal period for up to two additional months.10 However, “[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.

         In reviewing the denial of petitioner’s Rule 60(b) motion, our function is limited to
deciding whether the circuit court abused its discretion in ruling that sufficient grounds for
disturbing the finality of the judgment were not shown in a timely manner. See 157 W.Va. at 778,
204 S.E.2d at 86, syl. pt. 4. In this case, the circuit court found that there were insufficient grounds
upon which to disturb the finality of its dismissal of petitioner’s civil action because petitioner
attempted to re-litigate issues “previously before the [c]ourt in its consideration of [respondent’s
renewed motion to dismiss].”11 See Powderidge Unit Owners Ass’n v. Highland Properties, Ltd.,
196 W.Va. 692, 705, 474 S.E.2d 872, 885 (1996) (stating that “Rule 60(b) motions which seek
merely to re[-]litigate legal issues heard at the underlying proceeding are without merit”) (footnote
omitted). Upon our review of the substantial appendix filed by petitioner, which includes both of
his complaints (with exhibits) and the transcripts of the May 19, 2015, hearing on respondent’s
renewed motion to dismiss and the December 11, 2015, hearing on petitioner’s motion for relief
from judgment, we find that the circuit court properly determined that petitioner merely sought to
re-litigate issues the court had already heard and decided. Therefore, we conclude that the circuit

       9
       “An order denying a motion under Rule 60(b) . . . is final and appealable.” Toler, 157
W.Va. at 778, 204 S.E.2d at 86, syl. pt. 2.
       10
         On June 9, 2016, petitioner filed a motion for an extension of time in which to perfect his
appeal. By an amended scheduling order, entered June 27, 2016, we granted the extension of time
and noted that petitioner perfected his appeal by filing his opening brief and appendix on June 10,
2016.
       11
          Petitioner complains that the circuit court’s January 6, 2016, order denying his Rule 60(b)
motion for relief from judgment was drafted by respondent’s attorney. Respondent counters that it
is common practice for attorneys to draft court orders. We agree with respondent and find that “we
concern ourselves not with who prepared the findings for the circuit court, but with whether the
findings adopted by the circuit court accurately reflect the existing law and the trial record.” State
ex rel. Cooper v. Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996). In this case, we find
that they do.


                                                   7
court did not abuse its discretion in denying petitioner’s Rule 60(b) motion for relief from the
circuit court’s June 23, 2015, dismissal order.

        For the foregoing reasons, we (1) dismiss petitioner’s appeal with regard to the circuit
court’s November 6, 2013, March 11, 2014, and June 23, 2015, orders; and (2) affirm the circuit
court’s January 6, 2016, order denying petitioner’s Rule 60(b) motion for relief from judgment.

                                                       Dismissed, in part, and Affirmed, in part.


ISSUED: February 17, 2017

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




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