Regina Griffith Olmstead, as Administratrix of the Estate of Ronald Lawrence Olmstead v. Jose Jorge Gordinho, d/b/a Responsible Pain and Aesthetic Management, PLLC

Summary

The West Virginia Supreme Court of Appeals affirmed the denial of a Rule 60(b) motion seeking relief from summary judgment in an action involving alleged malicious prosecution or abuse of process. The court held that the petitioner failed to show an abuse of discretion concerning survivability of the decedent’s personal tort claims or the alleged newly discovered evidence.

Holdings

1. An appeal from denial of a Rule 60(b) motion generally presents for review only the denial order, and the appellate court asks whether the trial court abused its discretion in determining that sufficient grounds to disturb the judgment were not timely shown.
2. The circuit court did not abuse its discretion in finding that the witness affidavit was not newly discovered evidence because the information it contained was known and available to petitioner before the summary-judgment hearing and could have been obtained with due diligence.
3. Petitioner failed to show that the circuit court abused its discretion in denying Rule 60(b) relief on the grounds that the claims did not survive the decedent's death or that the court failed to consider evidence of physical injury.

Questions Presented

1. Whether the circuit court abused its discretion in denying the administratrix's Rule 60(b) motion to vacate the judgment granting respondent summary judgment.
2. Whether the witness affidavit constituted newly discovered evidence under Rule 60(b)(2) when the information in the affidavit was known and available before the summary-judgment hearing.
3. Whether the administratrix demonstrated that the circuit court abused its discretion in resolving the survivability and alleged physical-injury grounds for relief.

Disposition

affirmed