                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



Ethel Adams, et al.,
                                                                                  FILED
                                                                                 March 31, 2014
Plaintiffs Below, Petitioners                                                RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
vs) No. 13-0077 (McDowell County 04-C-101)

Bluestone Coal Corporation and
EQT Production Company,
Defendants Below, Respondents


                                MEMORANDUM DECISION
        Petitioners Ethel Adams, et al., by counsel John T. Burleson, appeal the Circuit Court of
McDowell County’s order granting summary judgment to respondents on August 10, 2012, and
the circuit court’s order denying petitioners’ motion for reconsideration on January 2, 2013.
Respondent EQT Production Company (“EQT”), by counsel Timothy Miller, filed its response in
which respondent Bluestone Coal Corporation, by counsel Lawrence Morhous, joined. On
appeal, petitioners allege that the circuit court erred in granting respondents’ motions for
summary judgment, dismissing the case pursuant to Rules 37(b) and 41(b) of the West Virginia
Rules of Civil Procedure, and denying petitioners’ motion to reconsider.

        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.

        In April of 2004, petitioners filed a complaint alleging that the land use activities of
respondents proximately caused petitioners to sustain property damage following flooding in
May of 2002. After several years of inactivity, EQT moved for the production of documents,
specifically, the latitude and longitude of all damaged property. Following a hearing on
respondents’ motion to compel, the circuit court directed petitioners to provide EQT with the
latitude and longitude of the damaged properties.

       In October of 2010, EQT moved for summary judgment arguing that petitioners were not
downstream from EQT’s operations.1 By order entered on January 24, 2011, the circuit court
denied respondents’ motions for summary judgment. After the completion of discovery, EQT


       1
        Bluestone Coal Corporation also moved for summary judgment. Petitioners did not file a
response to respondents’ motions for summary judgment.
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moved for summary judgment.2 Following several scheduling continuances for good cause, the
circuit court held a hearing on respondents’ motions for summary judgment on June 29, 2012.3
By order entered on August 10, 2012, the circuit court granted respondents’ motions for
summary judgment.

       Following the circuit court’s summary judgment order, petitioners filed a motion to
reconsider its order.4 By order entered on January 2, 2013, the circuit court denied petitioners’
motion to reconsider. It is from these orders that petitioners now appeal.

        On appeal, petitioners raise three assignments of error. First, petitioners argue that the
circuit court’s order was deficient as a matter of law because the circuit court did not make any
findings of material fact. “A circuit court's entry of summary judgment is reviewed de novo.”
Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Upon review of the circuit
court’s order granting summary judgment in favor of respondents, this Court finds that
petitioners’ argument is without merit. In this instance, the circuit court made sixteen findings of
fact and four conclusions of law supporting its decision to grant respondents’ motions for
summary judgment. In granting respondents’ motions for summary judgment, the circuit court
concluded that
       [petitioners’] experts have failed to provide opinions, or conduct any studies,
       regarding [petitioners’] claims . . . . There is no fact testimony linking the May 2,
       2002[,] flooding with the [respondents’] operations. [Petitioners] have not
       demonstrated an ability to prove, through expert testimony or otherwise, that the
       [respondents] contributed to the flooding of May 2, 2002.

Furthermore, petitioners did not challenge the sufficiency of the circuit court’s findings of facts
and conclusions of law. For these reasons, the circuit court did not err in granting respondents’
summary judgment.

       Petitioners’ second assignment of error is that the circuit court erred in dismissing the
case on alternative grounds pursuant to Rules 37(b) and 41(b) of the West Virginia Rules of Civil
Procedure.5 Petitioners allege that dismissal pursuant to Rule 37(b) of the West Virginia Rules of

       2
        Bluestone Coal Corporation also moved for summary judgment. Petitioners did not file a
response to respondents’ motions for summary judgment.
       3
       Petitioners did not appear at the hearing on respondents’ motions for summary
judgment.
       4
           The appendix record does not indicate that petitioners filed a motion to reconsider.
       5
         Rule 37(b) states that “If a party or an officer, director, or managing agent of a party or a
person . . . fails to obey an order to provide or permit discovery . . . the court in which the action
is pending may make such orders in regard to the failure as are just . . . .” Rule 41(b) provides
that “[a]ny court in which is pending an action wherein for more than one year there has been no
order or proceeding . . . may, in its discretion, order such action to be struck from its docket . . .
.”
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Civil Procedure was improper because they were not given proper notice of a hearing on
sanctions. Likewise, petitioners argue that the circuit court erred in dismissing their case
pursuant to Rule 41(b) because the circuit court entered orders within one year of the hearing on
respondents’ motions for summary judgment and that petitioners were not provided proper notice
and an opportunity to be heard pursuant to Rule 41(b). Because petitioners’ first assignment of
error is dispositive of this appeal, petitioners’ second assignment of error is moot and does not
need to be addressed by this Court.
        Finally, petitioners argue that the circuit court erred in denying their “Motion for
Reconsideration.” Specifically, petitioners allege that the circuit court erred in ruling that they
failed to present additional evidence. Petitioners’ claim that they were not required to supplement
the record because the motion was filed within ten days of entry of the circuit court’s order
granting summary judgment in favor of respondents. As an initial matter, this Court must
determine the appropriate standard of review for petitioners’ argument.
       This Court has said that “a ‘motion to reconsider’ is not a properly titled pleading in West
Virginia.” Richardson v. Kennedy, 197 W.Va. 326, 329, 475 S.E.2d 418, 421 (1996).
Additionally, this Court has held that
               [w]hen a party filing a motion for reconsideration does not indicate under
       which West Virginia Rule of Civil Procedure it is filing the motion, the motion
       will be considered to be either a Rule 59(e) motion to alter or amend a judgment
       or a Rule 60(b) motion for relief from a judgment order. If the motion is filed
       within ten days of the circuit court’s entry of judgment, the motion is treated as a
       motion to alter or amend under Rule 59(e). If the motion is filed outside the ten-
       day limit, it can only be addressed under Rule 60(b).
Syl. Pt. 2, Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196 W.Va. 692, 474
S.E.2d 872 (1996). The circuit court’s order granting respondents’ summary judgment was
entered on August 10, 2012. A review of the circuit court’s docket sheet does not reflect that
petitioners filed a motion to reconsider. However, petitioners’ certificate of service attached to
the motion indicates that the motion was served on respondents’ counsel on August 24, 2012.
Therefore petitioners’ motion was filed within ten days, and will be treated as a motion to alter or
amend under Rule 59(e) of the West Virginia Rules of Civil Procedure. See W.Va. R. Civ. Pro.
6(a) (“In computing any period of time . . . the day of the act . . . from which the designated
period of time begins to run shall not be included. When the period of time prescribed or allowed
is fewer than 11 days, intermediate Saturdays, Sundays . . . shall be excluded in the
computation.”)
        We have previously held that “[t]he standard of review applicable to an appeal from a
motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same
standard that would apply to the underlying judgment upon which the motion is based and from
which the appeal to this Court is filed.” Syl. Pt. 1, Wickland v. Am. Travellers Life Ins. Co., 204
W.Va. 430, 513 S.E.2d 657 (1998). “A circuit court’s entry of summary judgment is reviewed de
novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Under Rule 59(e),
petitioners face a significant burden:



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       While Rule 59(e) does not itself provide a standard under which a circuit court
       may grant a motion to alter or amend, other courts and commentators have set
       forth the grounds for amending earlier judgments. For instance, the Litigation
       Handbook on West Virginia Rules of Civil Procedure states that a Rule 59(e)
       motion should be granted where: “(1) there is an intervening change in the
       controlling law; (2) new evidence not previously available comes to light; (3) it
       becomes necessary to remedy a clear error of law or (4) to prevent obvious
       injustice.” Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation
       Handbook on West Virginia Rules of Civil Procedure, § 59(e) at 1178–1179 (3d.
       Ed.2008). Under Rule 59(e), a party who relies on newly discovered evidence
       “must produce a legitimate justification for not presenting the evidence during the
       earlier proceeding.” Small v. Hunt, 98 F.3d 789, 798 (4th Cir.1996). Under Rule
       59(e), the reconsideration of a judgment after its entry is an extraordinary remedy
       which should be used sparingly. See Palmer v. Champion Mortgage, 465 F.3d 24,
       29 (1st Cir.2006); Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir.2004);
       Pacific Ins. Co. v. Amer. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.1998). See
       also 11 Wright et. al., Federal Practice and Procedure § 2810.1 (3d ed.2010).

Mey v. Pep Boys-Manny, Moe & Jack, 228 W.Va. 48, 56-57, 717 S.E.2d 235, 243-44 (2011).

        We do not find that the circuit court erred in denying petitioners’ motion to reconsider.
Petitioners did not argue that there was a change in the controlling law, offer new evidence,
claim that the circuit court made a clear error of law, or allege that it was necessary to prevent an
injustice. Specifically, the circuit court stated that petitioners failed to argue that its prior ruling
was incorrect as a matter of law. Additionally, there is now, as there was at the time the circuit
court entered its summary judgment order, no evidence that the circuit court failed to make
findings of fact and conclusion of law. Therefore, after careful consideration, this Court
concludes that the circuit court did not err in denying petitioners’ motion for reconsideration.

        For the foregoing reasons, the Court affirms the August 10, 2012, and January 2, 2013,
orders of the Circuit Court of McDowell County, West Virginia.

                                                                                             Affirmed.

ISSUED: March 31, 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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