Christopher Chafin and Cheat Lake Urgent Care, PLLC v. Brian R. Boal and Boal & Associates, P.C. ( 2023 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
September 2023 Term
_____________ November 7, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 22-0010 SUPREME COURT OF APPEALS
_____________ OF WEST VIRGINIA
CHRISTOPHER CHAFIN AND CHEAT LAKE URGENT CARE, PLLC,
Plaintiffs Below, Petitioners,
V.
BRIAN R. BOAL AND BOAL & ASSOCIATES, P.C.,
Defendants Below, Respondents.
________________________________________________
Appeal from the Circuit Court of Monongalia County
The Honorable Susan B. Tucker, Judge
Civil Action No. 16-C-547
AFFIRMED
________________________________________________
Submitted: September 26, 2023
Filed: November 7, 2023
Jason E. Wingfield, Esq. Robert L. Hogan, Esq.
Gianola, Barnum, Bechtel Avrum Levicoff, Esq.
& Jecklin L.C. The Levicoff Law Firm, P.C.
Morgantown, West Virginia Pittsburgh, Pennsylvania
Attorney for the Petitioners Attorneys for the Respondents
JUSTICE BUNN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “The standard of review applicable to an appeal from a motion to alter
or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), 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 filed.” Syllabus point 1, Wickland v. American Travellers Life
Insurance Co., 204 W. Va. 430, 513 S.E.2d 657 (1998).
2. “Summary judgment is appropriate where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, such as where the
nonmoving party has failed to make a sufficient showing on an essential element of the
case that it has the burden to prove.” Syllabus point 4, Painter v. Peavy, 192 W. Va. 189,
451 S.E.2d 755 (1994).
3. “‘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).” Syllabus
point 4, Vanderpool v. Hunt, 241 W. Va. 254, 823 S.E.2d 526 (2019).
i
4. “When a party to an action files a Rule 59(e) motion to alter or amend
judgment, the only errors which benefit from the extended appeal period are those which
are raised in the motion. The issues not assigned as grounds supporting an alteration or
amendment of judgment retain the original filing period.” Syllabus point 3, Thompson v.
Branches-Domestic Violence Shelter of Huntington, W. Va., Inc., 207 W. Va. 479, 534
S.E.2d 33 (2000).
ii
BUNN, Justice:
Petitioners Christopher Chafin, M.D. and Cheat Lake Urgent Care, PLLC
(“CLUC”) (collectively “the Chafin Petitioners” or “Petitioners”) appeal the December 9,
2021 order of the Circuit Court of Monongalia County denying their Rule 59(e) motion to
alter or amend the July 30, 2021 order granting partial summary judgment 1 to Brian Boal
and Boal & Associates, P.C. (collectively “the Boal Respondents” or “Respondents”) in
the underlying case asserting claims of accounting malpractice. The order at issue also
denied Petitioners’ Rule 60(b) motion for relief from an earlier circuit court order that
excluded the report of the Chafin Petitioners’ expert witness and precluded him from
testifying at trial.
In this appeal, the Chafin Petitioners raise three assignments of error. First,
Petitioners claim that the circuit court erred in striking their standard of care expert witness.
They next argue that the circuit court erred in granting summary judgment to the Boal
Respondents when expert testimony on the standard of care was not required to prove all
claims for relief they have asserted against Respondents. Finally, they contend that the
circuit court continuously abused its discretion and displayed obvious signs of prejudice
towards Petitioners. We find no error and affirm the circuit court.
In the underlying proceeding, Petitioners also asserted claims against
1
several other defendants—Dr. David Anderson, Gillen Enterprises, LLC, Affordable
Contractors, LLC, and Build It, LLC. It appears that the claims against these defendants
remain pending below. While these defendants have counsel, they are not parties to this
appeal and have not filed any documents with this Court.
1
I.
FACTUAL AND PROCEDURAL HISTORY
The Chafin Petitioners’ complaint contains the following factual allegations.
Dr. Chafin, Dr. David Anderson, and a third individual owned CLUC, a medical practice
in Monongalia County, West Virginia. CLUC retained the Boal Respondents “to provide
accounting and tax services to the practice”; Dr. Chafin also retained the Boal Respondents
for personal accounting and tax services. These accounting and tax services included:
(1) handling payroll for CLUC, (2) preparing profit and loss statements, (3) preparing tax
forms, (4) arranging and handling the withholding of salary to pay federal and state taxes,
and (5) filing and paying taxes. Despite the Boal Respondents provision of these services,
in 2013, Dr. Anderson, “was accused of embezzling upwards of $500,000 from [CLUC].”
Also, while the Boal Respondents withheld money from Dr. Chafin’s paycheck, they did
not pay the withheld money to the appropriate tax agencies.
Dr. Chafin initiated the underlying action in October 2016 by filing a
complaint in the Circuit Court of Monongalia County 2 against the Boal Respondents
2
Judge Phillip D. Gaujot was originally assigned to the underlying case;
however, he recused himself, and it was reassigned to Judge Susan B. Tucker. In September
2017, the Chafin Petitioners filed a motion to disqualify Judge Tucker from presiding over
the case alleging that she was potentially biased because she had made derogatory
statements about the Chafin Petitioners in a related criminal case and because a member of
the Chafin Petitioners’ counsel’s law firm had actively endorsed another candidate in the
last circuit court judge election. This Court denied the motion by administrative order
entered in October 2017.
2
regarding the accounting services they had provided. 3 Shortly thereafter, Dr. Chafin filed
an amended complaint, and subsequently, the circuit court granted leave for Dr. Chafin to
file a second amended complaint that added CLUC as a plaintiff. 4 Relevant to this appeal,
the second amended complaint contained the following five counts against the Boal
Respondents: (1) accounting malpractice, (2) breach of the CLUC contract, 5 (3) breach of
the Chafin contract, (4) negligence, and (5) negligent misrepresentation. It further alleged
a sixth count against Mr. Boal: breach of his fiduciary duty. Each of these counts is
premised on the same failure to provide appropriate accounting and tax services to the
Chafin Petitioners, and all counts, except for breach of fiduciary duty, explicitly contend
that the Boal Respondents deviated from acceptable standards of care for accounting
professionals.
Throughout the underlying proceedings, the parties engaged in written
discovery. 6 The Boal Respondents served interrogatories on Dr. Chafin in May 2017. 7
Relevant to this appeal, Interrogatory No. 10 requested as follows:
3
The complaint also named Dr. Anderson as a defendant due to his alleged
embezzlement.
4
Other defendants were also added, but they are not parties to this appeal.
There is no written contract included in the approximately 700-page
5
appendix record.
6
It does not appear from the appendix record that the parties took any
depositions.
The Boal Respondents also served a request for production of documents
7
on Dr. Chafin in May 2017, including a request to produce any expert witness reports and
3
With respect to any expert witness you expect to call at trial:
a. Give a complete statement of all opinions expressed by that
expert and the basis and reasons therefore;
b. Identify the data or other information considered by the
witness in forming the opinions;
c. Describe and produce any exhibits to be used as summary
or report to the witness’s opinions; . . . .
Dr. Chafin initially responded with a litany of objections and asserted that the request was
“premature and will be responded to in accordance with the [c]ourt’s Scheduling Order.”
He subsequently provided amended responses reiterating the same objections.
On December 6, 2018, the circuit court entered its first scheduling order,
setting the deadline for the Chafin Petitioners to disclose expert witnesses on May 1, 2019.
Petitioners timely served their disclosure, naming Charles J. Russo, who was expected to
testify to “the standard of care accounting professionals owe to [a] client and industry
practices[,]” 8 and provided his curriculum vitae. Counsel for the Boal Respondents
corresponded with the Chafin Petitioners’ counsel via e-mail and telephone messages
requesting additional information regarding the expert disclosures. When Respondents’
counsel did not receive any supplementation, the Boal Respondents filed a motion to
compel answers to their first set of interrogatories. Pertinent to this appeal, the Boal
curriculum vitae. Dr. Chafin’s responses to these requests are not included in the appendix
record.
8
The disclosure also named a damages expert witness who is not at issue in
this appeal.
4
Respondents argued that they had requested detailed expert opinions in May 2017 and that
as of June 2019 they still had not received a full response to their interrogatory. 9 Neither
Dr. Chafin nor the Chafin Petitioners filed a response. Days later, the circuit court entered
an amended scheduling order, setting the deadline for the Chafin Petitioners to “supplement
trial experts’ opinions” on August 9, 2019, and moving the trial date to March 2020. 10
On February 5, 2020, the Boal Respondents filed a motion in limine to
preclude Mr. Russo from testifying as a standard of care expert, as they had not received
any of the requested supplemental information. The Boal Respondents argued that the
Chafin Petitioners (1) ignored the requirements of the circuit court’s scheduling orders by
failing to file a disclosure which “delineate[d] the scope and substance of” their experts’
opinions, including Mr. Russo, and (2) failed to appropriately and timely respond to written
9
In this same motion, the Boal Respondents sought to compel production of
the Chafin Petitioners’ tax records and moved for sanctions for Petitioners’ failure to
produce those records in violation of a court order. On August 8, 2019, the circuit court
held a hearing on the motion to compel. During the hearing, the parties presented their
arguments concerning the production of Petitioner Chafin’s tax records but did not present
any argument concerning the sufficiency of the Chafin Petitioners’ expert witness
disclosures. When asked by the court if there were any other issues, both parties indicated
that there were not any other outstanding issues regarding discovery. The circuit court
further granted an oral motion to move the previously scheduled trial to a later date due to
incomplete discovery and because the current trial date was near “tax season,” which would
adversely impact the accountants involved in this matter.
On August 14, 2019, the circuit court entered a second amended scheduling
10
order modifying the deadline for completing discovery and setting the case for trial in June
2020. This order did not amend the August 9, 2019 deadline for the Chafin Petitioners to
supplement with their trial experts’ opinions.
5
discovery requesting the same detailed expert witness information. They further contended
that the Chafin Petitioners’ failure to timely and properly disclose their expert witness’
opinions severely prejudiced them. Petitioners argued in response that the delay in
providing the expert’s reports was due to their lack of resources “necessary to hire the
proper experts and to keep them working[,]” and not timely receiving documents, including
from Respondents, that were necessary to produce an expert opinion report.
The Boal Respondents filed a motion for summary judgment, and on March
11, 2020, they filed a brief in support of their motion arguing that because the Chafin
Petitioners had failed to properly disclose their expert’s opinions, they could not prove the
standard of care owed by the Boal Respondents and whether there was a deviation from
it. 11 On June 8, 2020, the Chafin Petitioners filed Mr. Russo’s expert witness report. In
response, the Boal Respondents filed a motion to strike the report and preclude Mr. Russo
from testifying at trial, contending that the report was untimely, contained conclusory
statements, and failed to provide the substance of Mr. Russo’s opinions.
11
On April 17, 2020, the circuit court entered an order continuing the trial
without setting a new trial date. Notably, this was a month into the Covid-19 pandemic,
which caused widespread court closures. See Supreme Court of Appeals of West Virginia,
Administrative Order (Mar. 16, 2020); Supreme Court of Appeals of West Virginia,
Administrative Order, Re: Judicial Emergency Declared (Mar. 22, 2020); Supreme Court
of Appeals of West Virginia, Administrative Order, Re: Judicial Emergency Declared,
Amended Order (Apr. 3, 2020); Supreme Court of Appeals of West Virginia,
Administrative Order, Re: Judicial Emergency Declared, Second Amended Order (Apr.
22, 2020).
6
The circuit court held a hearing on August 3, 2020, and entered an order the
following day granting the Boal Respondents’ motion to strike Mr. Russo’s report and
preclude him from testifying at trial. 12 Following the court’s order striking the Chafin
Petitioners’ only expert witness as to the standard of care, the Boal Respondents filed an
amended motion for summary judgment. In the amended motion, the Boal Respondents
asserted that because the circuit court granted the motion to strike Mr. Russo, Petitioners
could not establish a prima facie case for their claims. Days prior to the hearing on the
amended motion, the Chafin Petitioners served a response in opposition to summary
judgment arguing, for the first time, that other witnesses may provide expert testimony,
additional discovery was necessary, and not all their claims required expert testimony.
On July 12, 2021, the circuit court held a hearing on the Boal Respondents’
summary judgment and amended summary judgment motions. 13 The circuit court entered
12
The Chafin Petitioners filed a petition for a writ of prohibition with this
Court, seeking to prohibit enforcement of the order striking Mr. Russo’s report and
precluding his testimony at trial. We denied the writ by memorandum decision on March
17, 2021. This Court found that “petitioners did not inform the circuit court of their intent
to seek this extraordinary writ nor did petitioners request an order containing findings of
fact and conclusions of law that support the circuit court’s decision” as required by
Syllabus point 6 of State ex rel. Allstate Insurance Co. v. Gaughan, 203 W. Va. 358, 508
S.E.2d 75 (1998). State ex rel. Chafin v. Tucker, No. 20-0685, 2021 WL 1030320, at *4
(W. Va. Mar. 17, 2021) (memorandum decision). The Chafin Petitioners failed to request
an appropriate order from the circuit court after our opinion was issued.
13
That same day, the circuit court entered a final amended scheduling order
setting the trial for June 14, 2022 to June 17, 2022 and/or June 21, 2022 to June 23, 2022
and extending discovery to March 31, 2022. There were no extensions for expert
disclosures.
7
an order granting summary judgment in favor of the Boal Respondents on July 30, 2021,
noting that it had previously struck Mr. Russo’s expert report and precluded him from
testifying at trial. It went on to find that “[a]lthough captioned under different legal
theories, the [Chafin Petitioners’] claims all arise out of the same core of [sic] operative
facts and basic allegations.” The court continued:
[A]ll of [the Chafin Petitioners’] claims against [the Boal
Respondents] stem from the alleged failure to perform
professional duties owed to the clients, and the alleged failure
to perform such obligations in accordance with the applicable
standards of professional care and conduct. It logically follows
that these are matters well beyond the common knowledge and
experience of an average lay juror. As such, expert testimony
is needed to make out a prima facie case . . . .
Finally, it concluded, “Without liability expert testimony, [the Chafin Petitioners] cannot
make out a prima facie case against [the Boal Respondents].” This order was certified as
final pursuant to Rule 54(b). 14
On August 13, 2021, Petitioners filed two motions: (1) a motion asking the
circuit court to alter or amend the summary judgment order pursuant to Rule 59(e) of the
West Virginia Rules of Civil Procedure 15 and (2) a motion seeking relief from the order
striking Mr. Russo as an expert witness pursuant to Rule 60(b) of the West Virginia Rules
14
Rule 54(b) of the West Virginia Rules of Civil Procedure permits a court
to direct entry of a final judgment “as to one or more but fewer than all” claims or parties
when certain conditions are met.
15
See W. Va. R. Civ. P. 59(e) (“Any motion to alter or amend the judgment
shall be filed not later than 10 days after entry of the judgment.”).
8
of Civil Procedure. 16 In the Rule 59(e) motion, the Chafin Petitioners argued that the
“central issue for the [c]ourt to consider was whether, after having excluded the [Chafin
Petitioners’] standard of care expert, Charles Russo, the [Chafin Petitioners] could still
make a prima facie case . . . .” In other words, Petitioners contended that the circuit court
made a clear error of law in granting summary judgment in favor of the Boal Respondents
with respect to the breach of contract, negligence, negligent misrepresentation, and breach
of fiduciary duty claims because none of those claims require a standard of care expert
witness. The Chafin Petitioners also asserted that “amending the judgment would prevent
an obvious injustice where the merits of this case should be considered by a jury.” They
contended:
Because the [Chafin Petitioners] strongly believe that the law
favors the [c]ourt ruling that the expert should not have been
struck, the [o]rder granting the Boal [Respondents’] summary
judgement [sic] should not have been granted and was not yet
ripe for adjudication. Ultimately, the [c]ourt improperly
balanced the evils—the [c]ourt has ruled that the [Chafin
Petitioners], though engaging in the same conduct as the Boal
[Respondents], have somehow affected the substantial rights
of the Boal [Respondents] though they have not described any
prejudice. Additionally, actions in this [c]ourt have actually
impeded on [sic] the [Chafin Petitioners’] ability to recover by
shielding the Boal [Respondents] from scrutiny. Said another
way, the [c]ourt’s balancing of the issues has revealed that it is
much more detrimental to be late with a disclosure than it is to
engage in accounting malpractice.
16
Rule 60(b) of the West Virginia Rules of Civil Procedure allows for a
motion to “relieve a party or a party’s legal representative from a final judgment, order, or
proceeding” for certain reasons enumerated in the Rule.
9
In the Rule 60(b) motion, the Chafin Petitioners sought relief from the circuit
court’s order striking Mr. Russo. Specifically, the Chafin Petitioners argued that their
expert disclosure for Mr. Russo was timely, “even if detailed experts [sic] reports were not
disclosed”; that the West Virginia Rules of Civil Procedure do not require disclosure of an
expert report; and that there was no order from the circuit court mandating disclosure of an
expert report. Admitting that Mr. Russo’s report was disclosed after the deadline set forth
in the second amended scheduling order, the Chafin Petitioners asserted that the Boal
Respondents were not prejudiced by the late disclosure.
The Boal Respondents opposed both motions. By order entered December 9,
2021, the circuit court denied the Chafin Petitioners’ Rule 59(e) and Rule 60(b) motions.
In addressing the Rule 59(e) motion, the circuit court reiterated its previous finding that
“when whittled down to their core, all counts . . . are claims of professional liability . . . .”
The court further explained that Petitioners “entirely ignore[d] the substantial delay in their
provision of the necessary expert disclosures and corresponding prejudicial effect on [the
Boal Respondents] . . . .” Finally, the court found that the Rule 59(e) motion was untimely.
Regarding the Rule 60(b) motion, the circuit court initially noted that the
Chafin Petitioners failed to indicate the subpart of the Rule under which they sought relief.
The circuit court further found that the order striking Mr. Russo was interlocutory, so relief
through Rule 60(b) was improper, and even if Rule 60(b) applied, relief was barred under
each subpart of the Rule.
10
II.
STANDARD OF REVIEW
In reviewing the denial of a motion to alter or amend judgment pursuant to
Rule 59(e) of the West Virginia Rules of Civil Procedure we have held that
[t]he standard of review applicable to an appeal from a
motion to alter or amend a judgment, made pursuant to W. Va.
R. Civ. P. 59(e), 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 filed.
Syl. pt. 1, Wickland v. Am. Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657 (1998).
Because the underlying ruling challenged by the Chafin Petitioners pursuant to Rule 59(e)
was a grant of summary judgment, our review is plenary. See Syl. pt. 1, Painter v. Peavy,
192 W. Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of summary judgment is
reviewed de novo.”). Moreover,
[s]ummary judgment is appropriate where the record
taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, such as where the nonmoving party
has failed to make a sufficient showing on an essential element
of the case that it has the burden to prove.
Id. at Syl. pt. 4.
The standard of review of the circuit court’s ruling on the Rule 60(b) motion
is 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
11
discretion.” Syl. pt. 5, Toler v. Shelton, 157 W. Va. 778, 204
S.E.2d 85 (1974).
Syl. pt. 4, Vanderpool v. Hunt, 241 W. Va. 254, 823 S.E.2d 526 (2019). In Syllabus point
3 of Toler v. Shelton, 157 W. Va. 778, 204 S.E.2d 85 (1974), this Court further addressed
the scope of review of the denial of a Rule 60(b) motion and explained that “[a]n 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.”
III.
DISCUSSION
On appeal, the Chafin Petitioners raise three assignments of error: the circuit
court erred by (1) abusing its discretion in summarily barring Petitioners’ expert from trial
without any evidence of prejudice to Respondents; (2) granting summary judgment in favor
of Respondents when expert testimony on the standard of care was not necessary; and
(3) abusing its discretion and displaying obvious signs of prejudice towards Petitioners.
A. Scope of Appellate Review
Given the procedural posture of this case, we first must determine the scope
of this Court’s appellate review. The Chafin Petitioners appear to frame this appeal as direct
appeals of the order striking Petitioners’ standard of care expert and subsequent order
12
granting summary judgment in favor the Boal Respondents. 17 As such, the Boal
Respondents argue, the appeals were untimely filed and should be dismissed. 18 Despite
17
Specifically, the Chafin Petitioners neither cite to nor analyze the standards
of review for Rules 59(e) or 60(b) in their brief and, indeed, indicate that they are appealing
“the Circuit Court’s rulings regarding the exclusion of their expert and the resultant grant
of summary judgment.”
In Syllabus point 2 of Durm v. Heck’s, Inc., this Court held that despite the
18
language of Rule 54(b),
[w]here an order granting summary judgment to a party
completely disposes of any issues of liability as to that party,
the absence of language prescribed by Rule 54(b) of the West
Virginia Rules of Civil Procedure indicating that “no just
reason for delay” exists and “directi[ng] . . . entry of
judgment” will not render the order interlocutory and bar
appeal provided that this Court can determine from the order
that the trial court’s ruling approximates a final order in its
nature and effect.
184 W. Va. 562, 401 S.E.2d 908 (1991) (some alterations in original). Following this
decision, we determined that “entry of a Durm-type order, while allowing an aggrieved
party to take an immediate appeal, does not require that such an appeal be taken at that
time, and an aggrieved party may take an appeal at any time until the final appeal time in
the case expires.” Eblin v. Coldwell Banker Residential Affiliates, Inc., 193 W. Va. 215,
222, 455 S.E.2d 774, 781 (1995) (per curiam).
In the present matter Petitioners only attach the circuit court’s order denying
the Rule 59(e) and 60(b) motions and failed to reply to Respondents’ argument that they
were improperly and untimely appealing the summary judgment order. We have previously
noted that “West Virginia Rule of Appellate Procedure 5(b) requires that ‘the party
appealing shall file the notice of appeal and the attachments required in the notice of appeal
form contained in Appendix A of these Rules.’” Campbell v. CSX Transportation, Inc.,
No. 17-1034, 2019 WL 4257173, at *3 n.8 (W. Va. Sept. 9, 2019) (memorandum decision).
Accord W. Va. R. App. P. 5. Further, “Appendix A requires that petitioners ‘ATTACH
COPIES OF ALL ORDERS BEING APPEALED.’” Campbell, 2019 WL 4257173, at *3
n.8. Accordingly, to the extent that the Chafin Petitioners are seeking to challenge the
underlying order striking Mr. Russo or the order granting summary judgment those orders
were not attached to the Notice of Appeal and will not be addressed except as explained
herein. See id. (“To the extent petitioners seek to challenge the October 21, 2016, CSX
13
having the ability to file a reply brief to address this issue, the Chafin Petitioners opted to
file none.
This Court generally “liberally construe[s] briefs in determining issues
presented for review . . . .” State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621
(1996). The Chafin Petitioners timely filed a motion pursuant to Rule 59(e) of the West
Virginia Rules of Civil Procedure and timely filed a Notice of Appeal regarding the denial
of that motion. 19 This Court has stated that “Rule 59 motions suspend the running of the
time for appeal, and that time does not begin to run until the entry of an order deciding the
issues raised by the motion.” Riffe v. Armstrong, 197 W. Va. 626, 636, 477 S.E.2d 535,
545 (1996), holding modified on other grounds by Moats v. Preston Cnty. Comm’n, 206
W. Va. 8, 521 S.E.2d 180 (1999). 20 However, we subsequently held that “[w]hen a party
dismissal order, that order was not attached to the notice of appeal and is, therefore, not
properly before this Court.”).
19
Despite the circuit court’s finding that the Rule 59(e) motion was untimely,
upon our review, we find otherwise. Pursuant to Rule 6(a) of the West Virginia Rules of
Civil Procedure, when computing a period of time prescribed by the Rules, “the day of the
act . . . from which the designated period of time begins to run shall not be included.”
Further, “[t]he last day of the period so computed shall be included, unless it is a Saturday,
a Sunday, or a legal holiday, in which event the period runs until the end of the next day
which is not a Saturday, a Sunday, or a legal holiday.” Id. In addition, “intermediate
Saturdays, Sundays, and legal holidays shall be excluded in the computation” when the
time prescribed is fewer than 11 days. Id. Here, the circuit court entered its order granting
summary judgment on July 30, 2021. Pursuant to Rules 59(e) and 6(a), any motion to alter
or amend was due on August 13, 2021. The Chafin Petitioners filed their Rule 59(e) motion
on that day.
See also Syl. pt 7, James M.B. v. Carolyn M., 193 W. Va. 289, 456 S.E.2d
2016 (1995) (“A motion for reconsideration filed within ten days of judgment being entered
14
to an action files a Rule 59(e) motion to alter or amend judgment, the only errors which
benefit from the extended appeal period are those which are raised in the motion. The issues
not assigned as grounds supporting an alteration or amendment of judgment retain the
original filing period.” Syl. pt. 3, Thompson v. Branches-Domestic Violence Shelter of
Huntington, W. Va., Inc., 207 W. Va. 479, 534 S.E.2d 33 (2000). In crafting this Syllabus
point, we explained:
“The practical effect of such a [Rule 59(e)] motion is to enlarge
the time within which an appeal must be filed as to those
matters which are the subject of the motion. . . .” Wickland v.
American Travellers Life Ins. Co., 204 W. Va. 430, 434-35,
513 S.E.2d 657, 661-662 (1998). (Citations omitted).
Id., 207 W. Va. at 483, 534 S.E.2d at 37. See also Acord v. Colane Co., 228 W. Va. 291,
301, 719 S.E.2d 761, 771 (2011) (per curiam) (“Upon review, the record shows that [the
petitioner] did not challenge the circuit court’s ruling on [the successor liability issue] in
her Rule 59(e) motion. Consequently, that issue cannot be considered in this appeal.”).
Considering all the above, we find that the most liberal reading of the Chafin
Petitioners’ brief and assignments of error lends itself to appellate review of the denial of
the Rule 59(e) motion and the propriety of the underlying grant of summary judgment as
suspends the finality of the judgment and makes the judgment unripe for appeal. When the
time for appeal is so extended, its full length begins to run from the date of entry of the
order disposing of the motion.”); W. Va. R. Civ. P. 72 (“The time for filing an appeal
commences to run and is to be computed from the entry of any of the following
orders: . . . granting or denying a motion under Rule 59 to alter or amend the
judgment . . . .”).
15
to the issue raised in the Rule 59(e) motion. 21 Additionally, the Chafin Petitioners filed a
motion pursuant to Rule 60(b) and timely appealed the order denying that motion. As such,
the correctness of the denial of the Rule 60(b) motion is also within our appellate review.
With those limitations in mind, we consider the assignments of error on appeal.
B. Summary Judgment and Rule 59(e) of the West Virginia Rules of Civil Procedure
We first consider the denial of the Chafin Petitioners’ Rule 59(e) motion and
the underlying order granting summary judgment in favor of the Boal Respondents. 22 In
their Rule 59(e) motion, the Chafin Petitioners contended that the circuit court’s summary
21
The underlying summary judgment order that resolved each of Petitioners’
claims against the Boal Respondents is designated as final pursuant to Rule 54(b). Appeal
of that order would have been appropriate. See Syl. pt. 1, Riffe v. Armstrong, 197 W. Va.
626, 477 S.E.2d 535 (1996) (“In an order dismissing fewer than all of the parties or fewer
than all the claims in a civil action, the inclusion of the language required by Rule 54(b) of
the West Virginia Rules of Civil Procedure makes that order appealable immediately with
respect to the dismissed parties and claims.”), modified on other grounds by Moats v.
Preston Cnty. Comm’n, 206 W. Va. 8, 521 S.E.2d 180 (1999).
While the circuit court’s order denying the Rule 59(e) and 60(b) motions
does not contain such language, we find that the order is final and appealable for similar
reasons as the summary judgment order. See Syl. pt. 7, in part, Erie Ins. Co. v. Dolly, 240
W. Va. 345, 811 S.E.2d 875 (2018) (“‘The key to determining if an order is final is not
whether the language from Rule 54(b) of the West Virginia Rules of Civil Procedure is
included in the order, but is whether the order approximates a final order in its nature and
effect. . . .’ Syl. Pt. 1, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194
W. Va. 770, 461 S.E.2d 516 (1995).”).
22
This Court has held that “[a] motion under Rule 59(e) of the West Virginia
Rules of Civil Procedure should be granted where: (1) there is an intervening change in
controlling law; (2) new evidence not previously available comes to light; (3) it becomes
necessary to remedy a clear error of law or (4) to prevent obvious injustice.” Syl. pt. 2, Mey
v. Pep Boys-Manny, Moe & Jack, 228 W. Va. 48, 717 S.E.2d 235 (2011).
16
judgment order “should be amended to allow those claims to proceed which do not require
expert testimony to establish a standard of care.” 23 Specifically, they argued that of the six
causes of action they asserted against the Boal Respondents, only the accounting
malpractice claim required expert testimony. 24
The Chafin Petitioners’ allegations in the second amended complaint can be
distilled to the following: the Boal Respondents, as CLUC’s and Dr. Chafin’s personal
accountants (1) failed to discover Dr. Anderson’s embezzlement of funds from CLUC and
(2) failed to ensure payment of Dr. Chafin’s personal income taxes. The Chafin Petitioners
do not dispute that expert testimony was required for the malpractice claim in the second
amended complaint. 25 Instead, they argue that the other claims of breach of contract,
23
The Rule 59(e) motion also asserted that the circuit court “is obligated to
disregard any error or defect in the proceeding which does not affect the substantial rights
of the parties and thus should amend the [o]rder granting the Boal [Respondents]
[s]ummary [j]udgment.” Buried in the one paragraph argument under this statement is that
Petitioners’ expert witness should not have been struck. Petitioners do not cite to any law,
and there are scant facts recited in support. Given this cursory argument, it is difficult to
discern what relief Petitioners were seeking. On appeal to this Court, the Chafin Petitioners
make no specific reference to this one-paragraph argument. Accordingly, we decline to
address it.
24
The Chafin Petitioners’ Rule 59(e) motion cites only one case and one
statute in support of their position.
25
On appeal, Petitioners also assert, in a conclusory manner, that the
allegations in the second amended complaint were of a nature that an expert witness was
not necessary because they fell within the common knowledge exception. However,
Petitioners explicitly represented to the circuit court that they would prove their case using
expert witness opinion testimony. During the hearing on the motion to exclude Mr. Russo,
Petitioners’ counsel proffered the following to the circuit court:
17
general negligence, negligent misrepresentation, and breach of fiduciary duty do not
require expert testimony.
This Court has generally found that cases involving professional
negligence/malpractice require expert testimony. See, e.g., Syl. pt. 4, J.C. by & through
Michelle C. v. Pfizer, Inc., 240 W. Va. 571, 814 S.E.2d 234 (2018) (“‘It is the general rule
that in medical malpractice cases negligence or want of professional skill can be proved
only by expert witnesses.’ Syl. Pt. 2, Roberts v. Gale, 149 W. Va. 166, 139 S.E.2d 272(1964).”); First Nat’l. Bank of Bluefield v. Crawford, 182 W. Va. 107, 111 n.9, 386 S.E.2d
310, 314 n.9 (1989) (“As in most cases involving the question of professional malpractice,
the issue is ordinarily resolved through expert testimony.”). Other jurisdictions have also
specifically found that accounting malpractice cases require expert witnesses. See, e.g.,
Brown-Wilbert, Inc. v. Copeland Buhl & Co., P.L.L.P., 732 N.W.2d 209, 218 (Minn. 2007)
(“Thus, in order to survive a motion for directed verdict in an accountant malpractice case,
a plaintiff must present expert testimony that identifies the applicable standard of care and
opines that the accountant deviated from that standard and that the departure caused the
plaintiff’s damages.”); Kemmerlin v. Wingate, 261 S.E.2d 50, 51 (S.C. 1979) (“Since
[Petitioners’ Counsel]: Well, Your Honor, the allegations are
such as that David Anderson couldn’t have accomplished the
embezzlement that he did[,] had the accountant been doing his
job. And so, that goes directly to the accountant’s standard of
care. We have an accountant that says this is where the
accountant messed up, and we have another accountant that
says this is what that mistake was worth.
18
[accounting malpractice] is an area beyond the realm of ordinary lay knowledge, expert
testimony usually will be necessary to establish both the standard of care and the
defendant’s departure therefrom.”).
In a factually similar case, Hassebrock v. Bernhoft, 815 F.3d 334 (7th Cir.
2016), the plaintiffs “sued their former attorneys and accountants for professional
malpractice, but they waited until after discovery closed to file their expert-witness
disclosure.” Id. at 336. The lower court struck the expert witness and found that “[w]ithout
expert testimony, the [plaintiffs] could not prove their claims against either the attorneys
or the accountants.” Id. Accordingly, the lower court entered summary judgment in favor
of the defendants. Id.On appeal, the Hassebrock plaintiffs argued that the expert witness should
not have been excluded, but even assuming the exclusion was proper, all the claims brought
against the defendants in the complaint—negligence, breach of contract, breach of
fiduciary duty, negligent misrepresentation, and aiding and abetting against the accounting
firm—did not require an expert witness. Id. at 337, 340. The court concluded that the
malpractice claim required expert testimony because it was a professional negligence claim
and the plaintiffs did not sufficiently raise the common knowledge exception. Id. at 342.
Considering the remaining causes of action, the court found that the “breach-of-contract
claim directly incorporate[d] the professional duties of care that . . . require expert
testimony . . . .” Id. Additionally, the contracts that were allegedly breached were ones for
19
professional services, and “[u]nlike an ordinary contract dispute, in this context the
question of breach doesn’t turn on whether the defendants complied with specific terms in
the contract but rather on whether they rendered professionally competent services within
the standard of care.” Id. at 343. The court explained that “[a] plaintiff cannot be permitted,
by recharacterizing the claim—whether by calling the [professional’s action] a breach of
fiduciary obligation or by contending that his contract with the law firm contained an
implied promise not to commit such [acts]—to get around the requirement of presenting
expert testimony.” Id. (quotations and citation omitted) (some alterations in original). For
similar reasons, the court also determined that the claims for breach of fiduciary duty and
negligent misrepresentation failed. Id. 26
Here, the Chafin Petitioners explicitly alleged in each count against the Boal
Respondents, except the breach of fiduciary duty claim, 27 that there was a deviation from
26
See also Cohen & Co. v. Breen, Cohen & Co. v. Breen, No. 100775, 2014
WL 4460363, at *5 (Ohio Ct. App. Sept. 11, 2014) (“The term ‘malpractice’ refers to
professional misconduct, i.e. the failure of one rendering services in the practice of a
profession to exercise that degree of skill and learning normally applied by members of
that profession in similar circumstances. In the context of legal and medical malpractice,
the courts have held that malpractice by any other name still constitutes malpractice,
whether predicated on contract or tort. The Tenth District in Muir [v. Hadler Real Est.
Mgmt. Co., 4 Ohio App. 3d 89, 446 N.E.2d 820 (1982)] explained that professional
misconduct may consist either of negligence or of breach of the contract of employment.
It makes no difference whether the professional misconduct is founded in tort or contract,
it still constitutes malpractice.” (quotations and citations omitted)).
27
The lack of an explicit allegation regarding the breach of standard of care
is not fatal to the conclusion that the breach of fiduciary duty claim also requires expert
testimony in this case. See Hassebrock v. Bernhoft, 815 F.3d 334, 343 (7th Cir. 2016)
(“Even if the contract claim had been stated in a way that was less obviously duplicative
20
the acceptable standards of care related to the provision of accounting services.
Additionally, each of these causes of action, including the breach of fiduciary duty, was
premised on the same factual scenario: that the Boal Respondents failed to provide
acceptable accounting services. Notably, Petitioners themselves represented to the court
below that an expert witness was necessary to prove their claims for relief against the Boal
Respondents. Given our prior determination that expert testimony as to the standard of care
is necessary, and the lack of an expert here, we find that the circuit court did not err in
granting summary judgment on all counts related to the Boal Respondents, and further did
not err in denying Petitioners’ Rule 59(e) motion to alter or amend. 28
C. Rule 60(b) of the West Virginia Rules of Civil Procedure
Next, we turn to the propriety of the circuit court’s denial of the Chafin
Petitioners’ Rule 60(b) motion. As referenced above, our review of a lower court’s denial
of Rule 60(b) relief is limited to “only the order of denial itself and not the substance
supporting the underlying judgment nor the final judgment order.” Syl. pt. 3, in part, Toler,
of the negligence claims, summary judgment remains appropriate.”). As described herein,
the breach of fiduciary claim was based upon the same reasons as to why the Boal
Respondents failed to provide acceptable accounting services.
28
The Chafin Petitioners argue this outcome “would require expert testimony
in every breach of contract, negligence[,] and fraud case . . . .” We disagree. As detailed
herein, Petitioners explicitly asserted that almost every cause of action against the Boal
Respondents included a deviation from the acceptable standard of care related to the
provision of accounting services. Further, each of the causes of action was explicitly
premised on the provision of professional accounting services. This fact pattern will most
certainly not be the case for every breach of contract or negligence case.
21
157 W. Va. 778, 204 S.E.2d 85. Our function “is limited to deciding whether the trial court
abused its discretion in ruling that sufficient grounds for disturbing the finality of the
judgment were not shown in a timely manner.” Id. at Syl. pt. 4, in part.
In their Rule 60(b) motion, the Chafin Petitioners requested relief from the
circuit court’s previous order striking their standard of care expert witness, Mr. Russo. The
motion asserted that the circuit court failed to explain why this witness was excluded; that
expert reports are not required under the West Virginia Rules of Civil Procedure; that the
Boal Respondents’ conduct contributed to any discovery delay; and that even if the
disclosure was late or deficient, there was no prejudice to the Boal Respondents because
there was time to cure it prior to trial. On appeal, the Chafin Petitioners, citing little law,
reiterate these same arguments.
The Boal Respondents contend that the Rule 60(b) motion was an improper
vehicle to obtain relief from that order. In support of their position, the Boal Respondents,
relying on the language in Rule 60(b), argue that it applies only to final judgments and
orders and that the order striking Mr. Russo was an interlocutory order. See W. Va. R. Civ.
P. 60(b) (“On motion and upon such terms as are just, the court may relieve a party or a
party’s legal representative from a final judgment, order, or proceeding . . . .” (emphasis
added)).
22
We have previously concluded that “Rule 60(b) by its plain terms applies to
a ‘final judgment, order, or proceeding.’ (Emphasis added).” State ex rel. Crafton v.
Burnside, 207 W. Va. 74, 77, 528 S.E.2d 768, 771 (2000) (quoting W. Va. R. Civ. P.
60(b)). “‘Interlocutory orders and judgments are not within the provisions of 60(b), but are
left to the plenary power of the court that rendered them to afford such relief from them as
justice requires.’” Caldwell v. Caldwell, 177 W. Va. 61, 63, 350 S.E.2d 688, 690 (1986)
(quoting 7 J. Moore, Moore’s Federal Practice ¶ 60.20 (2d ed.1985)). Further, this Court
has recognized that when an order is certified pursuant to Rule 54(b), but does not fully
resolve the litigation below, our review of “preceding non-appealable orders” is
permissible “only when the errors in the Rule 54(b) order arise from the earlier non-
appealable orders.” WW Consultants, Inc. v. Pocahontas Cnty. Pub. Serv. Dist., 248 W. Va.
323, ___, 888 S.E.2d 823, 831 (2023). See also Jane Doe-1 v. Corp. of President of The
Church of Jesus Christ of Latter-day Saints, 239 W. Va. 428, 445, 801 S.E.2d 443, 460
(2017) (considering in limine rulings along with an appeal from a Rule 54(b) order granting
summary judgment where “the in limine rulings and the summary judgment rulings are
inextricably entwined”).
It is undisputed that the order striking Mr. Russo as an expert witness and
precluding him to testify at trial is generally an interlocutory order. See Chafin, 2021 WL
1030320, at *4 (finding that this order was a non-appealable interlocutory order).
Moreover, only partial summary judgment has been granted as there are other parties to the
case not at issue in this appeal. While the summary judgment order as to the Boal
23
Respondents was certified pursuant to Rule 54(b), the Chafin Petitioners have failed to
demonstrate that the certification renders the order striking Dr. Russo properly reviewable
by this Court. Despite the circuit court and the Boal Respondents both asserting below that
Rule 60(b) is an improper vehicle to challenge the order striking Mr. Russo due to its
interlocutory nature, the Chafin Petitioners failed to make any argument explaining how
this order is reviewable pursuant to Rule 54(b). Respondents once again challenged its
interlocutory nature in their response brief in this Court and Petitioners again failed to
address the issue in a reply brief. Because the Chafin Petitioners have failed to sufficiently
identify below and brief on appeal how they may seek relief from an otherwise
interlocutory order, 29 we find the circuit court did not abuse its discretion in denying relief
under Rule 60(b). Consequently, the Chafin Petitioners are not entitled to relief from that
order on appeal. 30
29
See State v. Crane, No. A-1-CA-39878, 2022 WL 17820777, at *2 (N.M.
Ct. App. Dec. 20, 2022), cert. denied (Mar. 28, 2023) (“To rule on an inadequately briefed
issue, this Court would have to develop the arguments itself, effectively performing the
parties’ work for them. This creates a strain on judicial resources and a substantial risk of
error. It is of no benefit either to the parties or to future litigants for this Court to promulgate
case law based on our own speculation rather than the parties’ carefully considered
arguments.” (quotations and citations omitted)). C.f. Conestoga Titleholder, LLC v. Wilson,
504 P.3d 1088 (Kan. Ct. App. 2022) (“There must be an explanation as to why the issues
are properly before this court if the issues were not raised before the district court. Supreme
Court Rule 6.02(a)(5)). [The petitioner] provides no explanation for why the issues are now
properly before us. Thus, we decline to address [those] claims.”).
30
The Chafin Petitioners additionally contend that Judge Tucker was
prejudiced and/or biased against them throughout the entirety of the proceedings below.
This issue was not raised in either the Rule 59(e) or the Rule 60(b) motions. Accordingly,
we decline to address it on appeal.
24
IV.
CONCLUSION
We find that the circuit court did not err by granting summary judgment to
the Boal Respondents or by failing to alter or amend the judgment. Further, the circuit court
did not err in denying the Chafin Petitioners’ motion for relief from judgment or order. For
the foregoing reasons, the December 9, 2021 order of the circuit court is affirmed.
Affirmed.
25