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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2009 Term
LESLIE EQUIPMENT COMPANY, A WEST VIRGINIA CORPORATION,
Plaintiff Below, Appellee
W00D RESOURCES COMPANY, L.L.C.., CHRISTOPHER TODD ZACK
INDIVIDUALLY AND D/B/A WOOD RESOURCES COMPANY, L.L.C., RAMONA
C. GOEKE, INDIVIDUALLY AND D/B/A WOOD RESOURCES COMPANY,
L..L.C., AND WENDELL L. KOPREK, INDIVIDUALLY AND D/B/A WOOD
RESOURCES COMPANY, L.L.C.
CHRISTOPHER TODD ZACK AND RAMONA C. GOEKE,
Appeal from the Circuit Court of Wirt County
The Honorable Robert A. Waters, Circuit Judge
Civil Action No. 07-C-35
Submitted: September 9, 2009
Filed: October 29, 2009
P. Todd Phillips,
David H. Wilmoth,
Morgantown, West Virginia Elkins, West Virginia
Counsel for the Appellants Counsel for the Appellee
JUSTICE McHUGH delivered the Opinion of the Court
JUSTICE DAVIS dissents in part and concurs in part and reserves the right to file a
dissenting and/or concurring opinion.
JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.
JUSTICE KETCHUM concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. To enable a court to hear and determine an action, suit or other proceeding
it must have jurisdiction of the subject matter and jurisdiction of the parties; both are
necessary and the absence of either is fatal to its jurisdiction. Syl. Pt. 3, State ex rel. Smith
v. Bosworth, 145 W.Va. 753, 117 S.E.2d 610 (1960).
2. The Due Process Clause of the Fourteenth Amendment to the United States
Constitution operates to limit the jurisdiction of a state court to enter a judgment affecting
the rights or interests of a nonresident defendant. This due process limitation requires a state
court to have personal jurisdiction over the nonresident defendant. Syl. Pt. 1, Pries v. Watt,
186 W.Va. 49, 410 S.E.2d 285 (1991).
3. Under West Virginia Code § 56-3-33 (Supp. 2009), the acceptance by the
Secretary of State of service of process as the attorney-in-fact for a nonresident defendant
who has committed one of the enumerated statutory acts is the legal equivalent of personally
serving that nonresident within this state.
4. In contrast to the legislative schema of West Virginia Code § 56-3-33
(Supp. 2009), Rule 4 of the West Virginia Rules of Civil Procedure does not provide that
constructive service on a nonresident defendant has the same force of law as personal service
effected in state. As a result, in personam jurisdiction does not arise by operation of law
when a nonresident defendant is constructively served with process pursuant to the
provisions of Rule 4 of the West Virginia Rules of Civil Procedure.
5. A movant seeking relief under Rule 60(b)(4) of the West Virginia Rules of
Civil Procedure must show that the judgement sought to be vacated is void and that the
motion to vacate the judgment was filed within a reasonable period of time.
Appellants Christopher Todd Zach and Ramona C. Goeke appeal from the May
27, 2008, order of the Circuit Court of Wirt County denying their motion to set aside a
default judgment previously entered against them.
(See footnote 1)
As grounds for both the motion to set
aside and the appeal, Appellants argue that the default judgment is a void order based on the
absence of in personam jurisdiction. Appellee Leslie Equipment Company contends that the
trial court did have personal jurisdiction over the nonresident Appellants based on the
constructive service provisions of the West Virginia Rules of Civil Procedure.
(See footnote 2)
careful review of the applicable law and rules governing this issue, we conclude that the trial
court committed error in refusing to set aside the default judgment for lack of in personam
I. Factual and Procedural Background
On October 18, 2007, Leslie Equipment filed a complaint in the Circuit Court
of Wirt County against Wood Resources Company, L.L.C, and Appellants,
(See footnote 3)
as officers of the
company. Through the lawsuit, Leslie Equipment sought to recover an alleged debt arising
from Wood Resources' purchase of goods and services on credit.
(See footnote 4)
To serve process on
Appellants, Leslie Equipment looked to Rule 4(e)(2) of the West Virginia Rules of Civil
Procedure, which authorizes the use of constructive service on nonresident defendants by
means of certified mail
(See footnote 5)
in certain instances.
When Appellants did not file a responsive pleading following notification of
the lawsuit, Leslie Equipment moved for a default judgment on or about January 25, 2008.
The trial court granted Leslie Equipment's motion for a default judgment by order entered
on February 1, 2008, finding Appellants jointly and severally liable for the amount of $22,
(See footnote 6)
When he attempted to schedule a hearing on a motion to dismiss the complaint
for lack of in personam jurisdiction,
(See footnote 7)
Appellants' counsel discovered that a default judgment
had been entered against his clients. After obtaining a copy of the default judgment by
means of facsimile, Appellants' counsel filed a motion to set aside the default judgment and
dismiss the action on grounds that the judgment was void for lack of personal jurisdiction.
(See footnote 8)
Following a hearing on this motion on May 12, 2008, the trial court denied the relief sought
by Appellants. Through its order of May 27, 2008, the trial court ruled that: (1) Appellants
had actual notice of the pendency of the legal action that resulted in the entry of a default
judgment against them; (2) the manner in which service of process was effected under Rule
4(e)(2) is similarly authorized by West Virginia Code § 56-3-33 (2005); (3) the rules of civil
procedure control where there is a conflict with statutory law; and (4) Appellants have failed
to show good cause or excusable neglect entitling them to set aside the default judgment.
Through this appeal, Appellants seek to reverse the trial court's decision that the default
judgment entered against them is a valid and enforceable judgment.
II. Standard of Review
We review a decision by a trial court to award a default judgment pursuant to
an abuse of discretion standard. See Syl. Pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d
85 (1974). Where, however, the issue on appeal from the circuit court is clearly a question
of law . . ., we apply a de novo standard of review. Syl. Pt. 1, in part, Chrystal R.M. v.
Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). With these standards in mind, we
proceed to consider whether the trial court committed error in refusing to vacate the default
judgment at issue.
A. In Personam Jurisdiction
The validity of any court ruling is dependent on two jurisdictional predicates:
To enable a court to hear and determine an action, suit or other proceeding it must have
jurisdiction of the subject matter and jurisdiction of the parties; both are necessary and the
absence of either is fatal to its jurisdiction. Syl. Pt. 3, State ex rel. Smith v. Bosworth, 145
W.Va. 753, 117 S.E.2d 610 (1960). With regard to the need for personal jurisdiction over
a nonresident defendant we have recognized:
The Due Process Clause of the Fourteenth Amendment
to the United States Constitution operates to limit the
jurisdiction of a state court to enter a judgment affecting the
rights or interests of a nonresident defendant. This due process
limitation requires a state court to have personal jurisdiction
over the nonresident defendant.
Syl. Pt. 1, Pries v. Watt, 186 W.Va. 49, 410 S.E.2d 285 (1991). Consequently, a
determination that the trial court lacked in personam jurisdiction will render the default
judgment at issue void and unenforceable. See Syl. Pt. 1, Schweppes U.S.A. Ltd. v. Kiger,
158 W.Va. 794, 214 S.E.2d 867 (1975) (holding that order rendered without personal and
subject matter jurisdiction renders decree utterly void); see also Smith v. Smith, 140 W.Va.
298, 302-03, 83 S.E.2d 923, 925-26 (1954) (recognizing necessity of personal jurisdiction
for judgments founded upon personal liability).
Appellants contend that the manner in which Leslie Equipment sought to effect
service of process on them deprived the trial court of the necessary personal jurisdiction to
enter an enforceable default judgment. Relying solely on the provisions of Rule 4 of the
West Virginia Rules of Civil Procedure, Leslie Equipment had the clerk of the circuit court
transmit the complaint and summons to the nonresident Appellants by means of certified
mail. The pertinent provisions of Rule 4 provide for constructive service by means of
certified mail, return receipt requested, and delivery restricted to the addressee when
plaintiff knows the residence of a nonresident defendant or the principal office of a
nonresident defendant foreign corporation or business trust for which no officer, director,
trustee, agent, or appointed or statutory agent or attorney in fact is found in the State. . . .
W.Va. Code §§ 4(d)(1)(D); 4(e)(2).
While Rule 4 specifies the manner in which constructive service may be
effected upon a nonresident defendant,
(See footnote 9)
Appellants assert that the rule does not address the
issue of personal jurisdiction. In marked contrast to Rule 4, Appellants observe that West
Virginia Code § 56-3-33 _ our long-arm statute _ expressly contemplates and mandates that
when a nonresident or his duly authorized agent commits one or more of seven delineated
(See footnote 10)
the Secretary of State, by operation of law, becomes the nonresident's attorney-in-fact.
And, when lawful service is effected on the Secretary of State in connection with an action
arising from the nonresident's commission of an act specified in West Virginia Code § 56-3-
33, that service of process shall be of the same legal force and validity as though such
nonresident were personally served with a summons and complaint within this state. Id.
In Lozinski v. Lonzinki, 185 W.Va. 558, 408 S.E.2d 310 (1991), we recognized
how the adoption of our long-arm statute was a legislative device by which the trial courts
of this state could obtain personal jurisdiction over nonresident defendants within the bounds
of due process. Accord Harman v. Pauley, 522 F.Supp. 1130, 1135 (S.D. W.Va. 1981).
After discussing how West Virginia's extraterritorial 'reach' of jurisdiction over
nonresidents is obtained through what are commonly-referred to as 'single-acts,'
(See footnote 11)
determined that the failure to pay child support was a qualifying tortious act for purposes of
obtaining personal jurisdiction over a Florida resident via the West Virginia Secretary of
State. Lozinski, 185 W.Va. at 561, 563, 408 S.E.2d at 313, 315. Articulating the import of
West Virginia Code § 56-3-33, we stated: The intent and benefit of any long-arm statute
is to permit the secretary of state to accept process on behalf of a nonresident and to view
such substituted acceptance as conferring personal jurisdiction over the nonresident.
Lozinski, 185 W.Va. at 563, 408 S.E.2d at 315 (emphasis supplied).
Proper exercise of jurisdiction over a nonresident defendant by a trial court
exists when: (1) a statute . . .authorize[s] service of process on the nonresident defendant,
and (2) the service of process . . . comport[s] with the Due Process Clause. In re Celotex
Corp., 124 F.3d 619, 627 (4th Cir. 1997); see also Syl. Pt. 5, Abbot v. Owens-Corning
Fiberglass Corp., 191 W.Va. 198, 444 S.E.2d 285 (1994) (adopting two-step approach for
examining personal jurisdiction over nonresident: (1) whether defendant's actions satisfy
our personal jurisdiction statutes
(See footnote 12)
and (2) whether defendant's contacts with West Virginia
satisfy federal due process). Typically, the first step in determining whether a trial court
validly exercised personal jurisdiction over a nonresident defendant involves applying the
provisions of our long-arm statute _ West Virginia Code § 56-3-33.
(See footnote 13)
See Easterling v.
American Optical Corp., 207 W.Va. 123,130, 529 S.E.2d 588, 595 (2000) (applying test
adopted in Abbot, supra).
(See footnote 14)
Critical to this case, however, is the fact that Leslie Equipment chose not to
employ the provisions of West Virginia Code § 56-3-33 to obtain service of process on two
(See footnote 15)
Foregoing the Secretary of State's substituted acceptance that is
expressly authorized by the long-arm statute, Leslie Equipment opted to serve Appellants
pursuant to the constructive service provisions of Rule 4. And, despite the absence of any
authority, Leslie Equipment argues that personal jurisdiction can be obtained over a
nonresident defendant through means of constructive service.
Characterizing Appellants' position that compliance with the long-arm statute
is necessary to establish personal jurisdiction over a nonresident defendant as a technical
argument, Leslie Equipment contends that a trial court automatically obtains personal
jurisdiction over a nonresident defendant when it complies with the constructive service
provisions set forth in Rule 4. See W.Va.R.Civ.P. 4(e)(2). This contention lacks merit as the
provisions of Rule 4 address service of process and not the underlying jurisdictional
prerequisites necessary for a trial court's exercise of jurisdiction. See 4 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1061 at p. 319 (3rd ed. 2002)
(observing that although valid service under Rule 4 provides appropriate notice to persons
against whom claims are made, it does not ensure that the defendant is also within the in
personam jurisdiction power of the . . . court); accord Insurance Corp. v. Compagnie des
Bauxites, 456 U.S. 694, 715 n.6 (1982) (Powell, J., concurring) (stating that Rule 4 deals
expressly only with service of process, not with the underlying jurisdictional prerequisites).
Moreover, courts have uniformly rejected the argument that in personam jurisdiction can be
obtained over a nonresident defendant by means of personal or constructive service. See
Smith v. Smith, 140 W.Va. 298, 303-04, 83 S.E.2d 923, 926-27 (1954) (reasoning that
because personal service of process on nonresident defendant has same effect as order of
publication, in personam jurisdiction cannot be obtained in this manner); accord Honegger
v. Coastal Fertilizer & Supply, Inc., 712 So.2d 1161, 1162 (Fla. 2nd Dist. App. 1998) (holding
that constructive service was insufficient to confer requisite personal jurisdiction necessary
to enforce judgment for monetary damages); Ford Motor Credit Co. v. Shaw, 108 F.R.D.
218, 220 (N.D. Ala. 1985) (recognizing that valid personal judgment cannot be obtained
against nonresident defendant upon constructive service of process).
As the Fourth Circuit recognized in Central Operating Company v. Utility
Workers, 491 F.2d 245 (4th Cir. 1974), [u]nder West Virginia law, a judgment that operates
in personam cannot be rendered against a defendant upon whom only constructive service
has been executed. Id. at 251 (citing Fabian v. Kennedy, 333 F.Supp. 1001 (N.D. W.Va.
1971)). In Fabian, the district court examined whether the West Virginia courts acquired
personal jurisdiction over a nonresident defendant through delivery of process to the Florida
residence of the defendant.
(See footnote 16)
In reaching its conclusion the trial court reasoned:
No statute or rule of the State of West Virginia, pursuant
to Rule 4(e), Federal Rules of Civil Procedure, provides that in
personam jurisdiction can be had over a non-resident served
outside the state. Personal service of process on a non-resident
of West Virginia outside the state has the same effect, and no
other, as an order of publication.
Rule 4(f), West Virginia Rules of Civil Procedure,
provides that personal service outside the state on a non-resident
shall have the same effect as constructive service. It is held in
Grant v. Swank, 74 W.Va. 93, 81 S.E.967, that a personal decree
against a non-resident defendant, not served otherwise than by
publication, and not appearing to the proceeding, is erroneous.
333 F.Supp. at 1005 (some citations omitted). Based on the absence of either federal or state
law (statute or rule) granting the trial court in personam jurisdiction by means of
extraterritorial service, the court determined in Fabian that it lacked the necessary personal
jurisdiction over the nonresident defendant. Id.
Leslie Equipment wrongly equates service of process with the trial court's
acquisition of the necessary personal jurisdiction over Appellants. The fact that service of
process was effected on the nonresident defendant in Fabian was inconsequential.
(See footnote 17)
significance in Fabian and in the case sub judice is whether the necessary in personam
jurisdiction arose pursuant to a statute or rule. See 333 F.Supp. at 1005. As discussed
above, the purpose of our long-arm statute's adoption was to create a legal mechanism by
which personal jurisdiction could be obtained over nonresident defendants in compliance
with the minimum contacts analysis inherent to an individual's rights of due process. Under
West Virginia Code § 56-3-33, the acceptance by the Secretary of State of service of process
as the attorney-in-fact for a nonresident defendant who has committed one of the enumerated
statutory acts is the legal equivalent of personally serving that nonresident within this state.
See W.Va. Code § 56-3-33. By statutory design, compliance with the service of process
procedures set forth in West Virginia Code § 56-3-33 expressly authorizes the exercise of
personal jurisdiction over nonresident defendants by the courts of this state.
In contrast to the legislative schema of West Virginia Code § 56-3-33, Rule 4
of the West Virginia Rules of Civil Procedure does not provide that constructive service on
a nonresident defendant has the same force of law as personal service effected in state.
(See footnote 18)
a result, in personam jurisdiction does not arise by operation of law when a nonresident
defendant is constructively served with process pursuant to the provisions of Rule 4 of the
West Virginia Rules of Civil Procedure.
Simply put, Leslie Equipment has not identified any West Virginia law under
which constructive service of process on a non-resident defendant gives the trial courts of
this state personal jurisdiction.
(See footnote 19)
By failing to avail itself of the statutory method that vests
our trial courts with in personam jurisdiction over nonresident defendants,
(See footnote 20)
service effected upon Appellants led to a default judgment that is void and unenforceable as
against Mr.Zach and Ms. Goeke. See Syl. Pt.1, Kiger, 158 W.Va. 794, 214 S.E.2d 867.
Because there is no conflict between the provisions of Rule 4 and West Virginia Code § 56-
3-33, there is no basis for concluding, as did the trial court, that the provisions of Rule 4
supplant the provisions of the long-arm statute. See State v. Davis, 178 W.Va. 87, 90, 357
S.E.2d 769, 772 (1987), overruled on other grounds, State ex rel. R.L. v. Bedell, 192 W.Va.
435, 452 S.E.2d 893 (1994) (recognizing that court rules will supersede procedural statutes
where they are in conflict).
(See footnote 21)
Thus, the trial court erred in concluding that it had personal
jurisdiction over Appellants based on the constructive service effected pursuant to Rule 4.
(See footnote 22)
B. Void Judgment
As this Court recognized in Evans v. Holt, 193 W.Va. 578, 457 S.E.2d 515
(1995), a movant seeking relief under Rule 60(b)(4) of the West Virginia Rules of Civil
Procedure must show that the judgment sought to be vacated is void and that the motion to
vacate the judgment was filed within a reasonable period of time. Id. at 587, 457 S.E.2d at
524. Because we have determined that the default judgment entered against Appellants was
void for lack of personal jurisdiction, Appellants have only one other hurdle to meet in
seeking relief under Rule 60(b)(4). They are required to establish that they sought to vacate
the default judgment within a reasonable time. See Evans, 193 W.Va. at 587, 457 S.E.2d at
524. The record in this case indicates that Appellants' motion to set aside the default
judgment was filed with the trial court on March 27, 2008. That motion was filed within ten
days of counsel's discovery that a default judgment was entered
(See footnote 23)
against his clients on
February 1, 2008.
In Evans, we found a motion to set aside a void judgment to be timely filed
when the filing occurred thirty days after the defendant received notice of the judgment and
fourteen months after the judgment's entry. See 193 W.Va. at 587, 457 S.E.2d at 524.
Significantly less time transpired in this case than in Evans as Appellants moved to set aside
the default judgment less than two months after its entry and only ten days after learning of
the judgment. We would be hard pressed to rule against Appellants on the issue of whether
they sought to vacate the default judgment within a reasonable period of time under the facts
of this case. Accordingly, we determine that the trial court erred in refusing to set aside the
default judgment as void under Rule 60(b)(4).
Based on the foregoing, the decision of the Circuit Court of Wirt County is
The default judgment at issue was entered by the trial court on February 1,
Also named as a defendant in the suit was Wendell L. Koprek, the president
of Wood Resources.
Wood Resources is a foreign limited company not authorized to do business
in this state.
The record in this matter includes return receipt cards reflecting Mr. Zach's
acceptance of the complaint and summons on October 22, 2007, at his New Mexico
residence. Seven days later, Mr. Zach accepted delivery at his residence for service of legal
process intended for Ms. Goeke at her Iowa residence.
By order entered in March 2008, Leslie Equipment obtained a summary
judgment ruling against Wendell Koprek in connection with this same debt obligation. See
This contact with the trial court was made on March 17 or 18, 2008.
The certificate of service reflects that this motion was mailed to Leslie
Equipment's counsel on March 25, 2008.
Appellants argue that Leslie Equipment did not fully comply with the
provisions of Rule 4 because the certified mail was not delivery restricted as Mr. Zach signed
for the process intended for Ms. Goeke. See supra
Those acts are:
(1) Transacting any business in this state;
(2) Contracting to supply services or things in this state;
(3) Causing tortious injury by an act or omission in this state;
(4) Causing tortious injury in this state by an act or omission
outside this state if he or she regularly does or solicits business,
or engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services
rendered in this state;
(5) Causing injury in this state to any person by breach of
warranty expressly or impliedly made in the sale of goods
outside this state when he or she might reasonably have
expected such person to use, consume or be affected by the
goods in this state: Provided, That he or she also regularly does
or solicits business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or
consumed or services rendered in this state;
(6) Having an interest in, using or possessing real property in
this state; or
(7) Contracting to insure any person, property or risk located
within this state at the time of contracting.
W.Va. Code § 56-3-33(a).
Although we identified the relevant personal jurisdiction statutes in Abbott
as W.Va. Code §§ 31-1-15 and 56-3-33, the former statute, which pertained to corporations,
was repealed effective October 1, 2002. And, while the manner of serving foreign
corporations is currently set forth in W.Va. Code § 31D-15-1510 (2009) as part of the West
Virginia Business Corporation Act, W.Va. Code §§ 31D-1-101 to -17-1703 (2009),
subsection f. specifically provides that this section is not the exclusive means of serving a
foreign corporation. See
W.Va. Code § 31D-15-1510(f); accord Vass v. Volvo Trucks North
, 304 F.Supp.2d 851, 854 n.1 (S.D. W.Va. 2004).
Because Leslie Equipment opted not to follow the provisions for substituted
service by the Secretary State set forth in West Virginia Code § 56-3-33, there is no need to
examine either the application of our long-arm statute or the consequent minimum contacts
analysis that typically follows. See Celotex,
124 F.3d at 627 (observing that the West
Virginia long-arm statute is coextensive with the full reach of due process).
Leslie Equipment did utilize the Secretary of State to obtain service of
process on Wood Resources. See
W.Va. Code § 56-3-33.
A copy of the summons was left with defendant's sixteen-year-old son at the
Courts have repeatedly held that actual notice of the suit by a nonresident
defendant has no bearing on the issue of personal jurisdiction. See, e.g., Buggs v.
, 968 F.2d 1544, 1548 (2nd
Cir. 1992); Sieg v. Karnes
, 693 F.2d 803, 807 (8th
Cir. 1982); Bedford Computer Corp. v
. Graphic Press, Inc.
, 484 So.2d 1225, 1227 (Fla.
W.Va.R.Civ.P. 4(f) (rendering personal service effected extraterritorially
on West Virginia resident as equivalent of personal service effected in state).
Our decision in this matter is limited to recognizing that the personal
jurisdiction that arises by operation of law pursuant to the provisions of West Virginia Code
§ 56-3-33 does not similarly arise when constructive service is effected under Rule 4.
Because Leslie Equipment sought to establish personal jurisdiction based on the constructive
service provisions of Rule 4, there is no factual development in the record that would permit
the minimum contacts analysis typically employed when the issue of personal jurisdiction
is raised. See Pries
, 186 W.Va. at 50, 410 S.E.2d at 286, syl. pts. 2, 3.
158 W.Va. at 800, 214 S.E.2d at 871 (recognizing that strict
compliance is generally required where manner of service of process is specified statutorily).
W.Va.R.Civ.Pro. 82 (recognizing that rules of procedure should not be
construed to extend or limit jurisdiction).
Because we determine in subsection B. of this opinion that Appellants timely
moved to set aside the default judgment, they did not waive their right to asset the lack of
Appellants' counsel discovered the default judgment on March 17, 2008.