Submitted: May 4, 1994
Filed: May 20, 1994
Robert L. Godbey
R. Lee Booten, II
Huntington, West Virginia
Attorney for Appellant
JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
Where a defendant has answered a plaintiff's complaint,
a default judgment under Rule 55(b)(2) of the Rules of Civil
Procedure may not be obtained unless the defendant shall have been
served with written notice of the application for judgment at least
three days prior to the hearing on such application.
This appeal is brought by William Foy Lanham from an
order entered November 25, 1992, by the Circuit Court of Cabell
County. This order overruled the defendant's motion to reconsider
the circuit court's denial of a motion to set aside a default
judgment. For the reasons set forth below, we reverse the circuit
court and remand the matter for a trial on the merits.
This case arose from a dispute over legal fees charged by
Robert L. Godbey, an attorney, against Mr. Lanham. Mr. Lanham
executed a contract on January 9, 1987, with Mr. Godbey with regard
to representing him in a divorce action. Initially, he paid a sum
of $600 as a retainer. The contract noted that this amount was
generally sufficient to pay for an uncontested divorce. The
contract further provided for payment of $90.00 per hour plus costs
and expenses.See footnote 1 Mr. Lanham was billed an additional $6,803.23. The bulk of this fee was incurred in the latter months of the case.
The last payment made by Mr. Lanham was on September 23, 1987, in
the amount of $500. Mr. Godbey contends a balance of $6,355.73 is
When the balance due was not forthcoming, Mr. Godbey on
February 19, 1988, appeared before the family law master on a
motion for permission to withdraw as counsel for Mr. Lanham.See footnote 2
Thereafter, by letter dated May 19, 1988, Mr. Godbey notified Mr.
Lanham that if he failed to pay the balance due of $6,355.73, legal
action would be taken.See footnote 3 On May 25, 1988, Mr. Godbey instituted a legal action to collect the fee. Mr. Lanham appeared and defended
The case languished for some period of time. It appears
that Mr. Lanham initially was unrepresented by counsel, but did
file an answer. He also answered interrogatories propounded by Mr.
Godbey and appeared pro se for a deposition taken by Mr. Godbey in
March of 1989.
On September 22, 1992, Mr. Godbey served notice and a
motion for a time frame order upon Mr. Lanham by sending the same
by certified mail to his last address of record. The notice
advised that a conference would be held on October 2, 1992. The
post office attempted service without success and returned the
notice to Mr. Godbey on October 9, 1992. The circuit court held
the conference without Mr. Lanham's presence. Moreover, the
circuit court issued a time frame order, which set the matter for
a pretrial conference on October 9, 1992, and for trial on October
The time frame order was allegedly mailed to Mr. Lanham's
last known address both by regular mail and certified mail.See footnote 4 The
certified letter was returned to Mr. Godbey by the post office, but
the regular mail was not returned. Mr. Lanham failed to appear for
the pretrial conference on October 9, 1992. At the conference, Mr.
Godbey moved the circuit court to grant a default judgment. The
circuit court sustained the motion and granted judgment against Mr.
Lanham in the amount of $6,355.73, plus interest, and a $10.00
statutory attorney fee. The motion was granted without any service
of the motion upon Mr. Lanham.
The rule for granting a default judgment is found in Rule
55(b)(2) of the West Virginia Rules of Civil Procedure, which
provides, in relevant part: "If the party against whom judgment by
default is sought has appeared in the action, he (or, if appearing
by representative, his representative) shall be served with written
notice of the application for judgment at least 3 days prior to the
hearing on such application."
In this case, there was a clear abuse of discretion by
the circuit court. We have held that the failure to provide the
three-day notice provided in Rule 55(b)(2) of the Rules of Civil
Procedure is erroneous and will result in vacating the judgment. In Investors Loan Corp. v. Long, 152 W. Va. 673, 166 S.E.2d 113
(1969), we dealt with a situation where the party appeared in the
case through an attorney although no answer was filed. We held in
Syllabus Point 3 of Long:
"A motion for judgment by default against the party who has failed to plead to the complaint of the plaintiff but who has appeared in the action but has not been served with written notice of the application for such judgment at least three days prior to the hearing as provided by Rule 55(b)(2) of the Rules of Civil Procedure should not be granted or such judgment entered by the court in the absence of service of such notice; and a judgment by default so entered by the court is erroneous and will be set aside upon appeal."
Also, in Cordell v. Jarrett, 171 W. Va. 596, 598, 301 S.E.2d 227, 229 (1982), we noted that a default judgment granted without a three-day written notice prior to the hearing for the default judgment was erroneous. Here, an answer was filed by Mr. Lanham. Thus, it is clear that where a defendant has answered a plaintiff's complaint, a default judgment under Rule 55(b)(2) of the Rules of Civil Procedure may not be obtained unless the defendant shall have been served with written notice of the application for judgment at least three days prior to the hearing on such application.
In this case, no notice was given prior to the hearing
granting the motion for default judgment. We, therefore, reverse
the order of the Circuit Court of Cabell County and remand this
matter for a trial on the merits.
Reversed and remanded.
Footnote: 1The contract reads, in relevant part, as follows:
"THE UNDERSIGNED agrees to pay said
attorney the sum of Six Hundred Dollars
($600.00) as a retainer, this sum generally
being sufficient to pay for an uncontested
divorce; however, the total fee will be based
upon the amount of time involved at the rate
of Ninety Dollars ($90.00) per hour, plus
costs and necessary and reasonable expenses.
Should a Separation Agreement be drawn by my
said attorney, the fee for the same will be
Two Hundred Dollars ($200.00); that all
attorney fees and costs are payable prior to
the Final Hearing date and it is expressly understood that if the fees and costs are not paid, said attorney will not be required to bring the matter on for Final Hearing, or if a Final Hearing is had, the Final Order will not be entered until sums are fully satisfied."
Footnote: 2 In the Syllabus of Cardot v. Luff, 164 W. Va. 307, 262 S.E.2d 889 (1980), we stated:
"An attorney in a civil case can for good cause terminate the attorney-client relationship. However, before an attorney can unilaterally sever the attorney-client relationship, he must give reasonable notice to his client of his intention to withdraw. If the withdrawal involves a matter pending in court, there is the further requirement that the attorney secure court permission for his withdrawal."
Footnote: 3This court stated in Syllabus Point 1, in part, of May v. Seibert, 164 W.Va. 673, 264 S.E.2d 643 (1980):
"A lawyer may always withdraw from representing a client when he is justified in doing so because of . . . refusal by the client to pay agreed-upon expenses or fees. . . .
"In [this] situation the lawyer is entitled to so much of his fee as he has earned." (Emphasis added).
Footnote: 4We note that the record does not contain a certificate of service or other indication that the time frame order was mailed to Mr. Lanham.