648 S.E.2d 639
JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.
Per Curiam:
Andrew Moten, appellant/petitioner below (hereinafter referred to as “Mr.
Moten”), appeals an order of the Circuit Court of Raleigh County affirming the suspension
of his driving privileges by the Commissioner of the West Virginia Division of Motor
Vehicles (hereinafter referred to as “the DMV”). (See footnote 1) Mr. Moten argues that the circuit court
committed error by not remanding the case on the grounds that: (1) the DMV should have
granted his request for a continuance or (2) this Court's decision in Adkins v. Cline, 216
W. Va. 504, 607 S.E.2d 833 (2004), required that the case be remanded for a new hearing.
After a careful review of the briefs and record, and listening to oral arguments, we find that
the issues presented in this appeal were untimely. “We therefore dismiss this appeal as
improvidently awarded.” Cronin v. Bartlett, 196 W. Va. 324, 324, 472 S.E.2d 409, 409
(1996).
On April 14, 2005, Mr. Moten filed a motion in the circuit court styled “Motion
for Relief from Judgment and/or in the Alternative Motion for Reconsideration.” In that
motion, Mr. Moten essentially presented the same grounds for reversal that had been
submitted in his initial appeal to the circuit court. The only new matter submitted by Mr.
Moten involved the decision of the prosecutor in the criminal case to dismiss the DUI
charges. (See footnote 3) Mr. Moten argued in his motion that, because of the dismissal of the criminal
charges, our decision in Adkins v. Cline, 216 W. Va. 504, 607 S.E.2d 833 (2004), required
remanding the administrative case for a new hearing. By order entered October 12, 2005,
the circuit court denied Mr. Moten's motion. The October 12 order was never appealed.
Instead, Mr. Moten wrote a letter to the circuit court on November 8, 2005, requesting
clarification of the court's October 12, 2005, order. In response to the letter, the circuit court
entered yet another order on March 3, 2006. The March 3, 2006, order affirmed the previous
order of October 12, 2005. From this order, Mr. Moten appeals.
On appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W. Va. Code § 29A-5-4(a) and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.
Applying this standard to a lower court's decision to affirm an administrative decision, we
held in Syllabus point 1 of Wheeling-Pittsburgh Steel Corp. v. Rowing, 205 W. Va. 286, 517
S.E.2d 763 (1999):
Under the West Virginia Administrative Procedures Act,
W. Va. Code ch. 29A, appellate review of a circuit court's
affirmance of agency action is de novo, with any factual findings
made by the lower court in connection with alleged procedural
defects being reviewed under a clearly erroneous standard.
With these standards in mind, we turn to the issues presented by this appeal.
Where neither party to an appeal raises, briefs, or argues a jurisdictional question presented, this Court has the inherent power and duty to determine unilaterally its authority to hear a particular case. Parties cannot confer jurisdiction on this Court directly or indirectly where it is otherwise lacking.
193 W. Va. 289, 456 S.E.2d 16. See Syl. pt. 2, State ex rel. Davis v. Boles, 151 W. Va. 221,
151 S.E.2d 110 (1966) (“An appellate court is without jurisdiction to entertain an appeal after
the statutory appeal period has expired.”); Cronin v. Bartlett, 196 W. Va. 324, 326, 472
S.E.2d 409, 411 (1996) (“[T]he appeal period is jurisdictional.”).
Under the Administrative Procedures Act, an appeal to this Court is governed
by our laws relating to civil appeals. (See footnote 4) In Syllabus point 1, in part, of Coonrod v. Clark, 189
W. Va. 669, 434 S.E.2d 29 (1993), we summarized those laws as follows:
The appropriate procedure for a petition for appeal to this
Court to be timely presented, under W. Va. Code [§] 58-5-4
[2002] and Rule 3 of the Rules of Appellate Procedure [2007],
requires the petition to be filed with the clerk of the circuit court
where the judgment, decree or order being appealed was entered
within four months of the entry of judgment or within such
additional period, up to two months, as may be authorized
pursuant to W. Va. Code [§] 58-5-4 [2002].
In the instant case, the circuit court entered three orders. Mr. Moten has
appealed the last order entered by the circuit court. In determining whether the last order
presents a timely appeal of Mr. Moten's request for a remand, we must examine each of the
orders separately.
(1) The order of December 15, 2004. The order by the DMV revoking Mr.
Moten's driving privileges was timely appealed to the circuit court. In that appeal, Mr.
Moten argued that the evidence was insufficient to sustain the revocation and that the DMV
erred in not granting his motion for a continuance until after the conclusion of the criminal
proceeding. By an order entered on December 15, 2004, the circuit court affirmed the
decision of the DMV. That order also stated that “this matter is DISMISSED from the
docket of this Court.”
The circuit court's order of December 15 was a final and appealable order. See Syl. pt. 3, in part, James M.B., 193 W. Va. 289, 456 S.E.2d 16 (“A case is final only when
it terminates the litigation between the parties on the merits of the case and leaves nothing
to be done but to enforce by execution what has been determined.”). As such, Mr. Moten had
four months within which to file an appeal of that order. Mr. Moten did not file an appeal
of the December 15 order. Instead, on April 14, 2005, he filed a motion styled “Motion for
Relief from Judgment and/or in the Alternative Motion for Reconsideration.” (See footnote 5) In the body
of the motion it was alleged that the motion was filed pursuant to Rule 60(b) of the West
Virginia Rules of Civil Procedure. (See footnote 6) It has been recognized that “[a] motion made pursuant
to Rule 60(b) does not toll the running of the appeal period.” Franklin D. Cleckley, Robin
J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil
Procedure § 60(b), at 1330 (2d ed. 2006). Consequently, the Rule 60(b) motion did not toll
the appeal period for the December 15 order. Therefore, as a result of Mr. Moten's failure
to appeal the December 15 order, the substantive matters decided by that order cannot be
addressed by this Court in this appeal.
(2) The order of October 12, 2005. In Mr. Moten's Rule 60(b) motion he
reasserted the arguments made in his initial appeal to the circuit court. In addition, he argued
for the first time that, insofar as the criminal charges against him had been dropped, this
Court's decision in Adkins v. Cline, 216 W. Va. 504, 607 S.E.2d 833 (2004), (See footnote 7) necessitated
remanding the case for a new hearing. (See footnote 8) By order entered October 12, 2005, the circuit court
denied Mr. Moten's Rule 60(b) motion. That order stated specifically that “[t]he Court
dismisses this matter and strikes it from the docket, and ORDERS that the previous Dismissal
Order entered on December 15, 2004, is effective and that this matter is now completed.”
The order denying Mr. Moten's Rule 60(b) motion was a final appealable
order. (See footnote 9) Mr. Moten did not appeal the Rule 60(b) denial. Instead, Mr. Moten wrote a letter
to the circuit court on November 8, 2005, requesting clarification of the court's order of
October 12. Our rules of civil procedure do not recognize a “letter of clarification” as tolling
the appeal period of a final order. (See footnote 10) Consequently, as a result of Mr. Moten's failure to
appeal the October 12 order, we cannot address the propriety of the denial of the Rule 60(b)
motion.
(3) The order of March 3, 2006. As previously indicated, Mr. Moten sought
to challenge the circuit court's denial of his Rule 60(b) motion by filing a letter seeking
clarification of that order. The record does not contain the letter. (See footnote 11) The circuit court
responded to the letter of clarification by issuing its order of March 3, 2006. The March 3,
2006, order affirmed the circuit court's previous order of October 12. Mr. Moten appealed
the March 3 order; however, the appeal was too late.
Based upon the March 3 order, Mr. Moten asks this Court to find that the
circuit court erred in not remanding the case (1) on the grounds that the DMV should have
granted his request for a continuance or (2) based upon this Court's decision in Adkins. Both
of the grounds for remand were resolved in prior final orders that were simply not appealed.
Insofar as we are constrained from addressing matters arising from the two previous orders
because they were not appealed, the March 3 order does not present a timely appealable
issue. See Mary R. v. Billy D., 219 W. Va. 520, ___, 637 S.E.2d 618, 621 (2006) (refusing
to address issues that were decided in two previous final orders that had not been appealed); Dababnah v. Dababnah, 207 W. Va. 585, 592, 534 S.E.2d 781, 788 (2000) (“The [appellant]
may not now raise this issue before this Court, as the time for an appeal of this particular
decision has expired.”). We have held that “[w]hen an appeal has been granted and it
appears from the face of the record that it was improvidently awarded, the case will be
dismissed.” Syl., Angelo v. Rodman Trust, 161 W. Va. 408, 244 S.E.2d 321 (1978). See also Syl. pt. 1, in part, Sothen v. Continental Assurance Co., 147 W.Va. 458, 128 S.E.2d 458
(1962) (“An appeal or writ of error granted by this Court upon a judgment, decree or order
rendered more than [four] months prior to the presenting of the petition for such appeal to
this Court will be dismissed as improvidently awarded.”).
Dismissed.