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No. 29179

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Stewart B. Law v. Monongahela Power Company, dba Allegheny Power, a corporation, and State of West Virginia Bureau of Commerce, Division of Natural Resources, Public Land Corporation, and State of West Virginia Department of Transportation, Division of Highways

FILED
December 12, 2001
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

RELEASED
December 12, 2001
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

Davis, J., dissenting: Appellees, Monongahela Power Company (hereinafter referred to as "Monongahela Power"), argued that the summary judgment issues in this case should not be considered because they were untimely filed. The majority opinion recognized that the case had a timeliness problem. Nevertheless, rather than affirming the summary judgment, the majority opinion established an unmanageable rule of law in order to address the merits of the summary judgment order. Due to the majority's departure from precedent, I am compelled to dissent.

A longstanding legal maxim adhered to by this Court is that "[t]he law comes to the help of those who are vigilant, and not to those who sleep on their rights." Swann v. Young, 36 W. Va. 57, 70, 14 S.E. 426, 431 (1892). Accord State v. Salmons, 203 W. Va. 561,569, 509 S.E.2d 842, 850 (1998); Coleman v. Sopher, 201 W. Va. 588, 601, 499 S.E.2d 592, 605 (1997); State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996); Hoffman v. Wheeling Sav. & Loan Ass'n, 133 W. Va. 694, 707, 57 S.E.2d 725, 732 (1950); A.C. Fulmer Coal Co. v. Morgantown & K.R. Co., 57 W. Va. 470, 476, 50 S.E. 606, 608 (1905); Syl. pt. 6, Holsberry v. Harris, 56 W. Va. 320, 49 S.E. 404 (1904). We have explained this principle of law to mean that when attorneys are "careless, and
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[do] not attend to their interests in court, and [do] not watch the entries made of record, they must suffer the consequences of their folly. It is far better that they should suffer than that the rights of everybody else should be placed in jeopardy." Braden v. Reitzenberger, 18 W. Va. 286, 291 (1881). In the instant proceeding, Mr. Law slept on his rights to timely appeal thesummary judgment order entered against him. Rather than allow Mr. Law to "suffer the consequences" for his lack of vigilance, the majority opinion has abandoned well-established principles of law.

A. Procedural Posture of Case The trial court granted summary judgment to Monongahela Power by order entered January 5, 2000. Under our rules, Mr. Law had four months in which to either file a petition for appeal of the summary judgment order or seek an extension of time within which to appeal from the trial court.1

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The appeal period is set out in W. Va. Code

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West Virginia Law