                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Asset Acceptance, LLC,
Plaintiff Below, Petitioner                                                         FILED
                                                                                October 16, 2015
vs) No. 14-1265 (Mineral County 14-C-23)                                       RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Walter Grove,

Defendant Below, Respondent



                              MEMORANDUM DECISION
        Petitioner Asset Acceptance, LLC, by counsel Christopher A. Dawson, appeals the
September 2, 2014, order of the Circuit Court of Mineral County, that vacated summary
judgment in favor of petitioner and dismissed petitioner’s claim against respondent. Respondent
Walter Grove, by counsel Jason Sites, filed a response. Petitioner filed a reply.

        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.

        Petitioner filed suit against respondent on February 28, 2014, seeking to collect on a
delinquent credit card account that was assigned to petitioner by the original creditor, FIA Card
Services, N.A. In response to the complaint, respondent filed a pro se answer in which he
asserted that the claim was time-barred because the last transaction on the account occurred in
March of 2008, and the complaint was served in March of 2014.

        On or about May 14, 2014, petitioner filed a motion for summary judgment seeking
judgment against respondent in the amount of $17,406.71. Petitioner asserted that none of the
defenses raised by respondent were valid, and that the debt was not charged off1 by the original
creditor until March 31, 2009, and so the suit was timely filed within five years.

        The circuit court held a hearing on petitioner’s motion on June 5, 2014, granted
petitioner’s motion and entered judgment for the amount sought in petitioner’s complaint.
Respondent failed to appear at that hearing. On or about June 9, 2014, respondent filed a motion
to reconsider on the grounds that he did not know the time of the hearing, and appeared late. The

       1
         To “charge off” is an accounting term which means “to treat (an account receivable) as
a loss or expense because payment is unlikely; to treat [an account receivable] as a bad debt.”
Black’s Law Dictionary 283 (10th ed. 2014).
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circuit court denied respondent’s motion to reconsider after a hearing on July 17, 2014.
Respondent did not file any other motions.

        On September 2, 2014, the circuit court sua sponte entered a Final Order Altering
Judgment, upon finding that petitioner’s claim was time-barred as the five-year limitation period
ran from the date of respondent’s last payment and not the acceleration date cited by petitioner.
The order dismissed petitioner’s complaint with prejudice. On or about September 10, 2014,
petitioner filed a motion to alter, amend or vacate judgment pursuant to Rule 59 of the West
Virginia Rules of Civil Procedure. After a hearing on petitioner’s motion, the circuit court denied
petitioner’s motion, finding that the five-year limitation period began after the last payment date
and not the acceleration and charge off date. Petitioner appeals the order of the Circuit Court of
Mineral County entered September 2, 2014, and November 6, 2014, that set aside final judgment
and dismissed petitioner’s claim with prejudice.

        Requesting that this Court reverse the order of the circuit court and reinstate the original
judgment, petitioner raises two assignments of error on appeal. Petitioner asserts that the circuit
court lacked jurisdiction to set aside judgment, and that it erred as a matter of law in ruling that
petitioner’s complaint was time-barred. After careful consideration of the record and parties’
arguments, this Court finds that the circuit court did not err in dismissing petitioner’s claim.

       We note that “‘[t]his Court reviews the circuit court’s final order and ultimate disposition
under an abuse of discretion standard. We review challenges to findings of fact under a clearly
erroneous standard; conclusions of law are reviewed de novo.’ Syl. Pt. 4, Burgess v. Porterfield,
196 W.Va. 178, 469 S.E.2d 114 (1996).” Syl. Pt. 1, Zikos v. Clark, 214 W.Va. 235, 588 S.E.2d
400 (2003).

        First, petitioner challenges the circuit court’s jurisdiction to set aside the judgment.
Petitioner argues that the court entered final judgment in favor of petitioner on June 5, 2014, and
that because respondent did not appeal that order, the court’s jurisdiction expired once
respondent’s right to appeal the ruling expired. Petitioner further asserts that pursuant to Rule 60
of the West Virginia Rules of Civil Procedure, the circuit court only retained jurisdiction to
amend clerical errors, and that there is no provision in the West Virginia Rules of Civil
Procedure that grants the circuit court jurisdiction to set aside a verdict sua sponte. We disagree,
inasmuch as this Court has repeatedly held that a circuit court retains jurisdiction over final
judgments entered until the expiration of the term of court in which the order was entered.

       “A trial court has the power in its discretion to modify, set aside or vacate any
       judgment or decree during the term in which it is rendered. This power must be
       exercised with a sound discretion and not in an arbitrary or capricious manner;
       and if the trial court has acted in the exercise of a sound discretion an appellate
       court will not interfere except for the most cogent reasons.”

Manypenny v. Graham, 149 W.Va. 56, 64, 138 S.E.2d 724, 730 (1964) (citing Parkersburg
National Bank v. Neal, 28 W.Va. 744 (1886)). See also Syl. Pt. 4, Thompson v. Buffalo Land &
Coal Co., 77 W.Va. 782, 88 S.E. 1040 (1916). (“A court has jurisdiction over its final decrees
during the term at which they are made, and may set them aside at any time before
adjournment.”)

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        In the present matter, the order granting final judgment was entered in favor of petitioner
during the May of 2014, Term of Court. The order dismissing petitioner’s claim was entered on
September 2, 2014, days before the beginning of the September of 2014, Term of Court, which
commenced on September 8, 2015. As we have further explained, “‘[a]ll judgments or decrees
become final at the expiration of the term in which they are entered or after entry thereof in
vacation.’ Syllabus Point 1, Pyles v. Coiner, 152 W.Va. 473, 164 S.E.2d 435 (1968).” Syl. Pt. 1,
State ex rel. McClure v. Trent, 202 W.Va. 338, 504 S.E.2d 165 (1998). “‘The general rule is that
a valid final judgment cannot be set aside by the trial court after the term has adjourned or after
entry thereof in vacation.’ Syllabus Point 2, Pyles v. Coiner, 152 W.Va. 473, 164 S.E.2d 435
(1968).” Syl. Pt. 2, McClure. Further, “[i]n the normal course of litigation, juridical policy
strongly suggests that trial courts should be accorded initial opportunity to correct errors of both
judicial and clerical nature.” Young v. Young, 158 W.Va. 521, 527, 212 S.E.2d 310, 314 (1975).
For these reasons, we find that petitioner’s assignment of error has no merit, and that the circuit
court properly retained jurisdiction to alter or amend the final order prior to the expiration of the
term of court.

         Petitioner’s second assignment of error is that the circuit court erred as a matter of law in
ruling that the statute of limitations expired before the filing of petitioner’s complaint. The
circuit court found that respondent’s last payment on the account was on August 15, 2008, and
that “the statute of limitations for a debt of this nature is from five years from the date of last
payment.” Finding that petitioner did not file suit until March 3, 2014, the circuit court revoked
its prior judgment in favor of petitioner and dismissed the claim.

       Petitioner asserts that the right to recover money as referenced in West Virginia Code §
55-2-6 refers to the date that the creditor charged off and accelerated the account. Petitioner
claims that the circuit court erroneously relied upon language in West Virginia Code § 55-2-6,
which states further, in part,

       [a]nd if it be upon any other contract, express or implied, within five years, unless
       it be an action by one party against his copartner for a settlement of the
       partnership accounts or upon accounts concerning the trade or merchandise
       between merchant and merchant, their factors or servants, where the action of
       account would lie, in either of which cases the action may be brought until the
       expiration of five years from a cessation of the dealings in which they are
       interested together[.]

W.Va. Code § 55-2-6 (emphasis added). Petitioner claims that the circuit court erroneously relied
upon the “cessation of dealings” language within the statute, rather than relying upon when the
right to bring suit actually occurred, and notes that the “cessation of dealings only refers to
actions between partners, or accounts between merchants.” Petitioner claims further that the
circuit court erroneously chose to use the date of the last transaction between the parties, rather
than the creditor’s charge off date, in contravention of the statute.

        Petitioner is correct, in that the “cessation of dealings” language contained in the statute
refers to “actions between partners and accounts for merchants,” however, petitioner’s reliance
upon the acceleration and charge off date as the date in which the limitation period began is


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misplaced.2 Petitioner has not cited any authority for its position that the limitation period began
when it charged off respondent’s account. To the contrary, this Court has held, “[w]ith regard to
an account, whether an open, book, or running account, the general rule is that the statute of
limitations ordinarily begins to run on the date that each credit charge is made in the absence of
some express agreement between the parties.” Greer Limestone Co. v. Nestor, 175 W.Va. 289,
292, 332 S.E.2d 589, 593 (1985).3

        In the case sub judice, the record reflects that respondent’s last purchase with the credit
card took place on April 21, 2008. There is no evidence that the parties entered into any other
agreement that would toll the date of the beginning of the limitation period. Moreover, there is
no evidence that petitioner and respondent agreed that the statute of limitations would begin on
the charge off date, and petitioner has cited no authority for its position that the limitation period
begins at the time of acceleration and charge off. In the absence of some express agreement to
the contrary, pursuant to Nestor, and West Virginia Code § 55-2-6, the limitation period began
on April 21, 2008, and expired in April of 2013. Accordingly, the circuit court did not err in
finding that petitioner’s claim was barred by the tolling of the statute of limitations period, as
petitioner did not file suit until February of 2014.

       For the foregoing reasons, we affirm.


                                                                                           Affirmed.




       2
         In its order entered on November 12, 2014, the circuit court accepted respondent’s
counsel’s argument and found that the statute of limitations should begin from the date of the
cessation of dealings with the parties. As discussed herein this finding is erroneous, as the
cessation of dealings language refers to “actions between partners and accounts for merchants;”
however, “‘[i]t is permissible for us to affirm the granting of [dismissal] on bases different or
grounds other than those relied upon by the circuit court.’ Gentry v. Mangum, 195 W.Va. 512,
519, 466 S.E.2d 171, 178 (1995). See Subcarrier Communications, Inc. v. Nield, 218 W.Va. 292,
297, 624 S.E.2d 729, 734 (2005); Aluise v. Nationwide Mut. Fire Ins. Co., 218 W.Va. 498, 504,
625 S.E.2d 260, 266 (2005).” Hoover v. Moran, 222 W.Va. 112, 119, 662 S.E.2d 711, 718
(2008). Accordingly, we affirm the decision of the circuit court on other grounds.
       3
          The account at issue is considered an “open account.” An “account” is “‘a claim or
demand by one person against another creating a debtor-creditor relation.’ . . . An ‘open account’
is one that has not been settled by payment or has not become a stated account.” Greer
Limestone Co. v. Nestor, 175 W.Va. 289, 291-92, 332 S.E.2d 589, 592 (1985) (internal citations
omitted). Further, an “open account” is defined as “(1) an unpaid or unsettled account, or (2) an
account that is left open for ongoing debt and credit entries by two parties and that has a
fluctuating balance until either party finds it convenient to settle and close, at which time there is
a single liability.” Black’s Law Dictionary 22 (10th ed. 2014).



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ISSUED: October 16, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTED IN BY:

Justice Robin Jean Davis




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