Winston Threadgill, pro se, appeals the March 29, 2016, order
of the Circuit Court of Jefferson County denying his motion
for relief from judgment pursuant to Rule 60(b) of the West
Virginia Rules of Civil Procedure. Respondent Donald Painter,
Jr., by counsel J. Michael Cassell, filed a response in
support of the circuit court's order. Petitioner filed a
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.
parties own adjacent parcels of land. Petitioner claimed that
he had a right of way to cross respondent's parcel to
access his property, which claim respondent denied.
Petitioner filed a civil action to establish that his alleged
right of way existed. Respondent filed an answer and a
counterclaim to have petitioner pay his attorney's fees.
Subsequently, respondent filed a motion to dismiss
petitioner's action and attached exhibits to his motion.
In an order entered on October 11, 2012, the circuit court
treated respondent's motion as a motion for summary
judgment. Following a review of the exhibits attached to
respondent's motion as well as "the [e]xhibits filed
by [petitioner] in response to [respondent]'s [r]equest
for [p]roduction of [d]ocuments, " the circuit court
found that petitioner had no right of way across
respondent's property and awarded respondent summary
judgment on petitioner's claim. Petitioner did not appeal
the circuit court's October 11, 2012, order.
circuit court held a hearing on respondent's counterclaim
on December 3, 2012. Respondent testified that, prior to
initiating the action, petitioner attempted to bully him into
giving petitioner a right of way over his property "by
threatening costly litigation." The circuit court found
that petitioner's conduct caused an increase in the costs
of litigation. Accordingly, the circuit court found that
petitioner engaged in wanton, vexatious, and oppressive
conduct, and awarded respondent his attorney's fees in
the amount of $5, 585 in an order entered on December 5,
2012. Petitioner did not appeal the circuit court's
December 5, 2012, order.
three years later, on September 24, 2015, petitioner filed a
motion pursuant to Rule 60(b) of the West Virginia Rules of
Civil Procedure requesting relief from both the October 11,
2012, order awarding summary judgment and the December 5,
2012, order granting respondent's claim for
attorney's fees. As the basis for his motion, petitioner
alleged that both the circuit court's award of summary
judgment and its award of attorney's fees resulted from a
fraud committed upon the court by respondent's attorney.
The circuit court held a hearing on petitioner's motion
on December 18, 2015. For that hearing, petitioner subpoenaed
the attorney for respondent's predecessors-in-title.
Though the attorney was petitioner's witness, his
testimony refuted petitioner's claim. The attorney
testified that the right of way appearing throughout
respondent's chain of title belonged to respondent so
that he could access his own property. The attorney's
testimony confirmed that there was no right of way belonging
to petitioner over respondent's property. Accordingly,
the circuit court found that there was no fraud upon the
court and denied petitioner's Rule 60(b) motion. The
circuit court also made the alternate ruling that
petitioner's motion was time-barred.
now appeals the circuit court's March 29, 2016, order
denying his motion for relief from judgment. "An appeal
of the denial of a Rule 60(b) motion brings to consideration
for review only the order of denial itself and not the
substance supporting the underlying judgment nor the final
judgment order." Syl. Pt. 3, Toler v. Shelton,
157 W.Va. 778, 204 S.E.2d 85 (1974). We will not reverse the
denial of a Rule 60(b) motion in the absence of an abuse of
discretion. See id. at 778, 204 S.E.2d at 86, syl.
pt. 5. On the other hand, "[t]hat portion of Rule 60(b)
[that] enables a court to set aside a judgment for fraud upon
the court has no filing time limit." Syl. Pt. 4,
Savas v. Savas, 181 W.Va. 316, 382 S.E.2d 510
initial matter, the parties dispute whether petitioner's
allegations, if true, amounted to a fraud upon the court.
However, we agree with petitioner that he makes allegations
sufficient to support a claim of a fraud upon the court
because he alleges that the circuit court's rulings
relied on fraudulent misrepresentations by respondent's
attorney. See Withrow v. Williams, 216 W.Va. 385,
391, 607 S.E.2d 491, 497 (2004) (rejecting claim of a fraud
upon the court on ground that no rulings were made in
reliance on attorney's misrepresentations).
substance of petitioner's claim, we agree with respondent
that it is utterly without merit. Though petitioner contends
that the testimony presented at the December 18, 2015,
hearing shows that he has a right of way over
respondent's property, petitioner's contention is
contradicted by the portion of the hearing transcript that he
includes in his appendix. The record clearly reflects that
there is no right of way belonging to petitioner over
respondent's property. Accordingly, we conclude that the
circuit court properly found that there was no fraud upon the
court and did not abuse its discretion in denying
petitioner's Rule 60(b) motion for relief from judgment.
foregoing reasons, we affirm the circuit court's March
29, 2016, order denying petitioner's motion for relief
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin Jean Davis Justice Margaret L. Workman Justice Menis ...