Opinion
No. 11-1325
10-22-2012
Richard Ringer, Counterclaim Plaintiff Below, Petitioner v. Joseph John, Counterclaim Defendant Below, Respondent
(Preston County 09-C-225)
MEMORANDUM DECISION
Petitioner Richard Ringer, by counsel William C. Brewer and J. Tyler Slavey, appeals the Circuit Court of Preston County's order entered on August 18, 2011, denying petitioner's motion to amend the judgment order. Joseph John, by counsel Peter D. Dinardi, has filed his response. Petitioner has 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 is appropriate under Rule 21 of the Revised Rules of Appellate Procedure.
The appeal in this matter is based solely on the issue of prejudgment interest to be awarded in this breach of contract and unjust enrichment case. After a trial on the matter, petitioner was awarded a judgment of $42,100 in special damages on his counterclaim. The circuit court found that the date of accrual was August 2, 2010, which was the date the counterclaim was filed. Petitioner filed a motion to amend judgment pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure. Petitioner argued that the proper date of accrual was July 19, 2007, as it was the last date he worked on the property in question, which led to the breach of contract/unjust enrichment claims. A second judge, sitting by special assignment, denied the motion to amend judgment.
On appeal, petitioner argues that the circuit court erred in denying his Rule 60(b) motion because the circuit court utilized the incorrect prejudgment interest rate and an incorrect date of accrual. Petitioner argues that prejudgment interest begins to run on the date the action accrued, which he defines as the date on which he could have first brought suit. He argues that this date was in 2007, when he last worked under the contract which led to this suit. He argues that he is therefore entitled to the 2007 prejudgment interest rate, and entitled to have his prejudgment interest calculated from his last date worked until the date the judgment was entered. Respondent argues that the circuit court was correct to deny the motion to amend judgment and agrees with the circuit court's order.
This Court has stated as follows:
"A motion to vacate a judgment made pursuant to Rule 60(b), W.Va.R.C.P., is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion." Syl. pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).Syl. Pt. 1, Jackson Gen. Hosp. v. Davis, 195 W.Va. 74, 464 S.E.2d 593 (1995). Finding no error in the denial of the motion to amend the judgment order, this Court fully incorporates and adopts the circuit court's "Order Denying Plaintiff's Motion for New Trial; Order Granting, in part, and Denying, in part, Plaintiff's Motion for Stay of Execution/Ruling on Topsoil; and Order Denying Defendant's Motion to Amend Judgment Order" entered August 18, 2011, and attaches the same hereto.
For the foregoing reasons, we affirm the circuit court's decision.
Affirmed.
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Thomas E. McHugh