Link to PDF file
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2001 Term
Plaintiff Below, Appellee,
POUND, CONNER, LUCAS, ANDREOZZI, INC.,
d/b/a DRULANE, PALMER & SMITH,
Defendant Below, Appellant.
Appeal from the Circuit Court of Marion County
Honorable Rodney Merrifield, Judge
Civil Action No. 00-C-108
REVERSED AND REMANDED
Submitted: September 19, 2001
Filed: October 5, 2001
David Conrad Gall
Fairmont, West Virginia
Fairmont, West Virginia
Attorney for the Appellee
James A. Liotta
Tharp, Liotta & Yokum
Fairmont, West Virginia
Attorneys for the Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. Appellate review of the propriety of a default judgment focuses on
the issue of whether the trial court abused its discretion in entering the default judgment.
Syllabus point 3, Hinerman v. Levin, 172 W. Va. 777, 310 S.E.2d 843 (1983).
Pound, Conner, Lucas, Andrecozzi, Inc., d/b/a Drulane, Palmer & Smith
(hereinafter collectively referred to as Pound), appellant/defendant below, appeals from
a default judgment order entered by the Circuit Court of Marion County. The default
judgment required Pound to pay Henry Conner (hereinafter referred to as Mr. Conner),
appellee/plaintiff below, approximately $51,009.12.See footnote 1
In this appeal, Pound contends that
it was never served with a copy of the complaint, and therefore, default judgment should
not have been entered. After a review of the record we agree, and reverse the trial court's
entry of default judgment.
FACTUAL AND PROCEDURAL HISTORY
Mr. Conner was employed by Pound as a corporate officer during the
1980's, he was also a stockholder. While employed by Pound, Mr. Conner loaned the
company $200,000.00. Additionally, Mr. Conner permitted the company to use his
personal credit cards. Mr. Conner's employment with Pound was terminated on April 15,
1998. On May 2, 2000, Mr. Conner filed a complaint against Pound seeking monies owed
from the loan, the use of his personal credit cards and for other reimbursements.
Pound did not file an answer to the complaint. Mr. Conner moved for
default judgment. A hearing was held on the default judgment motion. During the
hearing, counsel for Pound made a special appearance to argue that Pound never received
a copy of the complaint. On October 2, 2000, the circuit court entered a default judgment
against Pound in the amount of $51,009.12. Pound now appeals entry of the default
STANDARD OF REVIEW
The circuit court entered a default judgment in this case pursuant to Rule
55(b)(2) of the West Virginia Rules of Civil Procedure.See footnote 2
We have previously held that
[a]ppellate review of the propriety of a default judgment focuses on the issue of whether
the trial court abused its discretion in entering the default judgment. Syl. pt. 3, Hinerman
v. Levin, 172 W. Va. 777, 310 S.E.2d 843 (1983). Accord Syl. pt. 6, White v. Berryman,
187 W. Va. 323, 418 S.E.2d 917 (1992). In Hinerman, this Court stated that while it is
quite willing to review default judgments and to overturn them in cases where good cause
is shown, a demonstration of such good cause is a necessary predicate to our overruling
a lower court's exercise of discretion. Hinerman, 172 W. Va. at 782, 310 S.E.2d at 848.
The underlying facts of this case pertaining to service of process upon Pound
are unclear. The record shows that Mr. Conner completed a Civil Case Information
Statement listing a West Virginia post office address for Pound. Thereafter, the Secretary
of State issued a summons, along with the complaint, that also listed a West Virginia post
office address for Pound. However, the Secretary of State's office appears to have had a
registered agent for Pound that had a New York post office address.See footnote 3
contained in the record shows that service of process was mailed to the New York post
office address, but the New York post office made no return thereon.
When a return receipt for service of process is noted unknown or
insufficient address, and no other action has been taken pursuant to the statutory
provisions for service, then service of process has not complied with the statutory
requirements and will not support a default judgment. See, e.g., Syl. pt. 2, Evans v. Holt,
193 W. Va. 578, 457 S.E.2d 515 (1995); Syl. pt. 4, Mollohan v. North Side Cheese Co.,
144 W. Va. 215, 107 S.E.2d 372 (1959). In the instant proceeding, the only evidence
regarding service of process upon Pound is a notation from the Secretary of State's office
indicating no return. Consequently, there is no evidence to show that Pound received
service of process.
In view of the foregoing, the circuit court's entry of default judgment is
reversed, and this case is remanded.
1Mr. Conner did not file a brief in this case. Counsel for Mr. Conner indicated by
letter that he was not opposed to setting aside the default judgment.
Coury v. Tsapis, 172 W. Va. 103, 106, 304 S.E.2d 7, 10 (1983), we
distinguished between a default and a default judgment, by observing that a default
relates to the issue of liability and a default judgment occurs after damages have been
3Pound's corporate status with the State of West Virginia is unclear.