John R. McGhee, Jr.
Gregory H. Schillace
Katherine Amelotte Jones Tiffany R. Durst
Kay, Casto & Chaney, P.L.L.C. Brough A. Jones
Charleston, West Virginia McNeer, Highland, McMunn &
Attorneys for the Appellant Varner
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
1. 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. Syllabus point 5, Toler v. Shelton, 157 W. Va. 778, 204 S.E.2d 85
2. A motion to vacate a default judgment 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. Syllabus point 3,
Intercity Realty Co. v. Gibson, 154 W. Va. 369, 175 S.E.2d 452 (1970).
3. In determining whether a default judgment should be . . . vacated
upon a Rule 60(b) motion, the trial court should consider: (1) the degree of prejudice
suffered by the plaintiff from the delay in answering; (2) the presence of material issues
of fact and meritorious defenses; (3) the significance of the interests at stake; and (4) the
degree of intransigence on the part of the defaulting party. Syllabus point 3, Parsons v.
Consolidated Gas Supply Corp., 163 W. Va. 464, 256 S.E.2d 758 (1979).
This appeal was filed by The Gentlemen's Club, Inc., d/b/a Silk Stockings (hereinafter referred to as the Club), appellant/defendant below, from an order of the Circuit Court of Harrison County denying the Club's motion to set aside a default judgment. The sole issue presented is whether the circuit court erred in denying the Club's motion to set aside the default judgment. After thoroughly reviewing the briefs and record in the case, and listening to the oral arguments, we affirm the circuit court's order denying the motion to set aside the default judgment.
Mr. Lee filed a civil action against the Club on January 13, 1999, alleging
causes of action arising from the fall and the injuries he sustained on the Club's premises.
Service of process was accepted by the Secretary of State on behalf of the Club on January
19, 1999. The Secretary of State forwarded process to Mr. Jeff Stamm, via certified mail,
return receipt requested, but the mail was returned marked unclaimed. The Secretary
of State then notified the clerk of the circuit court that process had been returned marked
In this appeal, the Club does not contest the authority of the Secretary of
State to accept process on its behalf. The Secretary of State's authority is fully set forth
in West Virginia Code § 31-1-15 (Supp. 2000) which states in part:
The secretary of state is hereby constituted the attorney-in-fact
for and on behalf of every corporation created by virtue of the
laws of this State and every foreign corporation authorized to
conduct affairs or do or transact business herein pursuant to
the provisions of this article, with authority to accept service
of notice and process on behalf of every such corporation and
upon whom service of notice and process may be made in this
state for and upon every such corporation.
Mr. Lee moved for entry of default on February 23, 1999. The circuit court granted the motion. A subsequent hearing was held on July 12, 1999, to determine damages.See footnote 3 3 On July 27, 1999, the circuit court entered a default judgment order awarding Mr. Lee $322,415.76.
On August 12, 1999, the default judgment order was mailed to Mr. Jeff
Stamm, via regular mail, to the address maintained with the Secretary of State.See footnote 4
Stamm received the order and contacted counsel for the Club. The Club thereafter filed
a Rule 60(b) motion to set aside the default and default judgment.See footnote 5
A hearing on the
motion was held on November 16, 1999. By order entered December 10, 1999, the circuit
court denied the motion. It is from this order that the Club now appeals.
Failing to present any evidence of a mistake, inadvertence, surprise,
excusable neglect, or unavoidable cause, the Club next argues that under the any other
reason factor of Rule 60(b), the trial court should have granted its motion. To support
this second argument, the Club points to the factors outlined by this Court in Syllabus point
3 of Parsons v. Consolidated Gas Supply Corp., 163 W. Va. 464, 256 S.E.2d 758 (1979):
In determining whether a default judgment should be. . . . vacated upon a Rule 60(b) motion, the trial court should consider: (1) the degree of prejudice suffered by the
plaintiff from the delay in answering; (2) the presence of
material issues of fact and meritorious defenses; (3) the
significance of the interests at stake; and (4) the degree of
intransigence on the part of the defaulting party.
Accord Syl. pt. 2, Jackson Gen. Hosp. v. Davis, 195 W. Va. 74, 464 S.E.2d 593 (1995). This Court has additionally held that [t]he Rules of Civil Procedure pertaining to the setting aside of default judgments should be liberally construed in order to provide relief from the onerous consequences of default judgments. Syl. pt. 2, Parsons v. McCoy, 157 W. Va. 183, 202 S.E.2d 632 (1973). Furthermore, we have determined that [i]f any doubt exists as to whether relief should be granted, such doubt should be resolved in favor of setting aside the default judgment in order that the case may be heard on the merits. State ex rel. United Mine Workers of America, Local Union 1938 v. Waters, 200 W. Va. 289, 298, 489 S.E.2d 266, 275 (1997) (citation omitted).
The Club contends that the default and default judgment should have been
vacated in light of the Parsons factors.See footnote 7
The circuit court's order does not address the
factors set out in Parsons. However, because we [r]eview de novo a matter which calls
for the application of law to undisputed facts, we apply the four factors enumerated above
in Parsons[.] Waters, 200 W. Va. at 298, 489 S.E.2d at 275. In doing so, we find that
the Club has failed to satisfy all four of the factors set out in Parsons. See, e.g.,White v.
Berryman, 187 W. Va. 323, 418 S.E.2d 917 (1992) (affirming default judgment as to one
of the defendants in the case).
The factor which militates against setting aside the default in this case is the
Club's intransigence. This court has noted that any evidence of intransigence on the part
of a defaulting party should be weighed heavily against him in determining the propriety
of a default judgment. Hinerman v. Levin, 172 W. Va. 777, 782, 310 S.E.2d 843, 849
(1983).See footnote 8
See also Coury v. Tsapis, 172 W. Va. 103, 304 S.E.2d 7 (1983) (reinstating a
The Club argues that it was not intransigent in failing to timely answer the
complaint. The Club contends that the affidavit submitted by Mr. Stamm indicates that he
was unaware that a suit had been filed until he received the default judgment order. We
are not persuaded by this argument.
Mr Lee contends that the Club was intransigent in failing to timely answer
the complaint for two reasons. First, Mr. Lee points out that the Club knew he was
seriously injured when he fell on the premises. Yet, the Club made no inquiry into his
condition. Second, Mr. Lee contends that it is simply implausible to believe that the Club
did not receive and understand the nature of the two certified communications forwarded
to it. Yet, the Club received and responded to the regularly mailed notice of default
We agree with Mr. Lee that the evidence overwhelmingly shows that the
Club intentionally avoided two previous communications concerning the incident. This is
not a situation where a defendant is totally unaware of the harm done to a plaintiff on the
defendant's premises. In this case, the Club knew Mr. Lee was injured on its premises.
Such knowledge would cause a reasonable business entity to notify its insurer of such an
injury and possible litigation resulting therefrom. The Club acted unreasonably in
attempting to ignore the injury to Mr. Lee. To rule otherwise encourages business entities
to ignore customers injured on their premises in hopes that the matter will vanish.
The Gentlemen's Club, Inc.
d/b/a Silk Stockings
Rt. 1, Box 248
Salem, West Virginia 26426