                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Paul Ashbaugh,
Petitioner Below, Petitioner                                                      FILED
                                                                               June 3, 2020
vs.) No. 18-0954 (Kanawha County 18-AA-200)                                      released at 3:00 p.m.
                                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
Harold D. Ward, Acting Director, Division of                                      OF WEST VIRGINIA

Water and Waste Management, West Virginia
Department of Environmental Protection,
Respondent Below, Respondent



                               MEMORANDUM DECISION


        Petitioner Paul Ashbaugh, self-represented, appeals two orders of the Circuit Court of
Kanawha County. In the first order, entered on July 26, 2018, the circuit court dismissed
petitioner’s appeal from a February 23, 2018, final order of the West Virginia Environmental
Quality Board (“Board”) directing petitioner to pay a civil assessment penalty (“CAP”) in the
amount of $1,071 after he was issued a notice of violation for allowing an open dump on his
property in Jefferson County, West Virginia. In the second order, entered on September 10, 2018,
the circuit court denied petitioner’s motion to alter or amend its July 26, 2018, order. Respondent
Harold D. Ward, Acting Director, Division of Water and Waste Management, West Virginia
Department of Environmental Protection (“DEP”), 1 by counsel Charles S. Driver, 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 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.


       1
        Harold D. Ward, Acting Director, Division of Water and Waste Management, West
Virginia Department of Environmental Protection, has been substituted as respondent in place of
his predecessor-in-office pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure.
                                                  1
        On June 6, 2016, petitioner was issued a notice of violation for allowing an open dump on
his property in Jefferson County, West Virginia, assessing a CAP in the proposed amount of
$1,818. Following a January 12, 2017, hearing within the DEP, the $1,818 CAP was affirmed.
Petitioner appealed to the Board, which held an evidentiary hearing on July 13, 2017. By final
order entered on February 23, 2018, the Board reduced the amount of the CAP by $747 and ordered
petitioner to pay the DEP $1,071. According to petitioner, he received the Board’s February 23,
2018, final order on March 5, 2018, and sent a “petition for appeal” to an official at the DEP, the
DEP’s counsel, and the Attorney General of West Virginia (“Attorney General”) on March 29,
2018. However, petitioner’s appeal from the Board’s final order was not filed in the Circuit Court
of Kanawha County until April 10, 2018.

         By order entered on May 14, 2018, the circuit court set forth a briefing schedule. On July
16, 2018, the DEP filed a response to petitioner’s appeal and a motion to dismiss the appeal as
untimely filed under West Virginia Code § 29A-5-4(b). 2 By order entered July 26, 2018, the circuit
court granted the DEP’s motion and dismissed petitioner’s appeal. On August 6, 2018, petitioner
filed a response to the DEP’s motion to dismiss, arguing that his appeal was timely filed. To his
response, petitioner attached the “petition for appeal” he sent to the DEP’s agents and the Attorney
General on March 29, 2018. Also on August 6, 2018, petitioner filed a motion to alter or amend
the circuit court’s July 26, 2018, order dismissing his appeal. By order entered on September 10,
2016, the circuit court acknowledged that it set forth a briefing schedule and that it granted the
DEP’s motion to dismiss prior to the date that a reply was due from petitioner. However, the circuit
court denied petitioner’s motion to alter or amend its July 26, 2018, order, finding that his appeal
had to be dismissed because it was untimely filed. 3 Petitioner now appeals the circuit court’s July
26, 2018, order dismissing his appeal and its September 10, 2018, order denying his motion to
alter or amend that judgment.

        We review the circuit court’s orders together. Syl. Pt. 1, Wickland v. Am. Travellers Life
In. Co., 204 W. Va. 430, 513 S.E.2d 657 (1998) (holding that standard of review applicable to an
appeal from motion to alter or amend judgment “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


       2
         West Virginia Code § 29A-5-4, governing judicial review of contested cases, generally
applies to this case. With regard to decisions by environmental tribunals such as the Board, West
Virginia Code § 22B-1-9(a) provides that other provisions of Chapter 22B of the Code may apply
instead of West Virginia Code § 29A-5-4. Here, because neither party argues that West Virginia
Code § 22B-3-3 applies to this case, we assume that West Virginia Code § 29A-5-4 exclusively
governs this case.
       3
        The circuit court addressed petitioner’s motion under Rule 60(b) of the West Virginia
Rules of Civil Procedure rather than Rule 59(e) of those Rules due to its finding that the motion
was not filed within ten days of the entry of its July 26, 2018, order. Based on our review of the
record, we find that petitioner filed his motion within the timeframe set forth in Rule 59(e) pursuant
to Rule 6(a) of the Rules of Civil Procedure, which governs the computation of time. However,
we further find that the circuit court’s determination that the motion could not be considered under
Rule 59(e) was harmless error because its underlying ruling, that petitioner’s appeal had to be
dismissed given its untimeliness, was correct.
                                                  2
filed”). “West Virginia Code § 29A-5-4(b) provides that a petition for review of an administrative
decision must be filed within thirty days after the petitioner receives notice of the final order or
decision of the agency.” Reed v. Haynes, 238 W. Va. 363, 367, 795 S.E.2d 518, 522 (2016)
(Emphasis in original). West Virginia Code § 29A-5-4(b) states:

       Proceedings for review shall be instituted by filing a petition, at the election of the
       petitioner, in either the circuit court of Kanawha county, West Virginia or in the
       circuit court of the county in which the petitioner or any one of the petitioners
       resides or does business, or with the judge thereof in vacation, within thirty days
       after the date upon which such party received notice of the final order or decision
       of the agency. A copy of the petition shall be served upon the agency and all other
       parties of record by registered or certified mail. The petition shall state whether the
       appeal is taken on questions of law or questions of fact, or both. No appeal bond
       shall be required to effect any such appeal.

(Emphasis added). Rule 2(b) of the West Virginia Rules of Procedure for Administrative Appeals
similarly provides:

       No Petition shall be filed from a state agency decision or final order in a contested
       case after the time period allowed by law. The petition shall be filed in the office
       of the circuit clerk of the circuit court in which venue lies by law, within 30 days
       after the petitioner receives notice of the final order or decision from the agency,
       unless otherwise provided by law.

        On appeal, petitioner argues that he filed his appeal from the Board’s February 23, 2018,
final order within thirty days of receiving it. 4 The DEP counters that the circuit court properly
dismissed petitioner’s appeal. We agree with the DEP.

        Rule 6(a) of the West Virginia Rules of Civil Procedure provides, in pertinent part, that
“[i]n computing any period of time prescribed or allowed by these rules, by the local rules of any
court, by order of court, or by any applicable statute, the day of the act, event, or default from
which the designated period of time begins to run shall not be included.” (Emphasis added). Here,
according to petitioner, he received the Board’s February 23, 2018, final order on March 5, 2018,
which is not counted pursuant to the rule. Thirty days from March 6, 2018, is April 5, 2018. The
docket sheet submitted by petitioner as a part of the appendix reflects that his appeal was not filed
with the circuit clerk until April 10, 2018. While not entirely clear, petitioner apparently first
argues that the docket sheet fails to accurately record the date on which he filed his appeal with
the circuit clerk. However, petitioner fails to specify a date or explain the manner in which he filed
his appeal with the clerk prior to April 10, 2018. Therefore, we reject any suggestion that the filing
date reflected on the docket sheet is incorrect.




       4
        Petitioner also argues the merits of his appeal from the Board’s February 23, 2018, final
order. However, given the circuit court’s dismissal of the appeal due to its untimeliness, that is the
only issue we address herein.
                                                  3
        Petitioner further argues that this case should be remanded for an evidentiary hearing so
that he can show that he timely filed his appeal. In making this argument, petitioner relies on our
ruling in State ex rel. Dale v. Pomponio, No. 12-1253, 2013 WL 2674947 (W. Va. June 13, 2013)
(memorandum decision), where we refused to issue a writ of prohibition to prohibit the
consideration of an administrative appeal that the circuit court found was filed within the thirty-
day timeframe set forth in West Virginia Code § 29A-5-4(b). In Dale, we found that “[t]he circuit
court’s explanation for the delay between the faxing of the petition for appeal [(to the circuit clerk)]
and the filing of the original [(mailed to the circuit judge, along with the filing fee, at the same
time as the fax to the clerk)] . . . was reasonable in light of the facts and circumstances of this
case.” Id. at *3.

        We find that the facts of this case are distinguishable from those of Dale. According to
petitioner, he sent a “petition for appeal” to the DEP’s agents and the Attorney General on March
29, 2018. Unlike the clerk and judge in Dale, none of those persons can be considered officers or
agents of the circuit court. Therefore, even accepting the truth of petitioner’s allegations, we find
that he would not be able to establish at an evidentiary hearing that he timely filed his appeal from
the Board’s February 23, 2018, final order. Accordingly, we conclude that the circuit court
properly dismissed petitioner’s appeal as not filed within the timeframe set forth in West Virginia
Code § 29A-5-4(b).

       For the foregoing reasons, we affirm the circuit court’s July 26, 2018, order dismissing his
appeal and its September 10, 2018, order denying his motion to alter or amend that judgment.

                                                                                             Affirmed.


ISSUED: June 3, 2020

CONCURRED IN BY:

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




                                                   4
