David M. Thomas
John C. Skinner
Kay, Casto & Chaney, P.L.L.C. F. Samuel Byrer
Morgantown, West Virginia Peter Ashby Pentony
Nichols & Skinner
Christopher P. Bastien Charles Town, West Virginia
Bastien & Martin, L.C. Attorneys for the Appellee,
Charleston, West Virginia Jewell Lynn Cook
Attorneys for the Appellant,
Carole Leasing Corporation
The Opinion of the Court was delivered Per Curiam.
JUSTICE MCGRAW dissents and reserves the right to file a dissenting opinion.
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 (1974).
2. In determining whether a default judgment should be entered in the
face of a Rule 6(b) motion or 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 Carole Leasing Corporation, appellant/defendant below (hereinafter referred to as CLC), from an order of the Circuit Court of Berkeley County denying CLC's motion to set aside a judgment by default. The judgment by default was entered in favor of Jewell Lynn Cook, appellee/plaintiff below (hereinafter referred to as Ms. Cook). Before this Court, CLC argues that the circuit court committed error in denying its motion to set aside the judgment by default. After a thorough review of the record and briefs, this case is reversed and remanded.
On January 15, 1999, Ms. Cook filed a John Doe suit naming CLC as a defendant.See footnote 1 1 The complaint alleged that CLC owned the vehicle which struck Ms. Cook.See footnote 2 2
Service of process was made on CLC, as an out-of-state business, through the Office of
the Secretary of State by certified mail to CLC's registered agent and president, George
A. Wall, Jr.See footnote 3
Service was accepted by Mr. Wall's wife, Eileen Wall, on January 27,
1999. It is undisputed that Mr. Wall gave the summons and complaint to CLC's claims
clerk. However, CLC did not file an answer to the complaint.
On March 10, 1999, Ms. Cook moved for judgment by default against CLC.
On March 11, 1999, the circuit court entered a judgment by default against CLC only on
the issue of liability.See footnote 4
Not until December 16, 1999,See footnote 5
did CLC enter the case by filing a
motion to set aside the judgment by default.See footnote 6
On April 25, 2000, the circuit court issued
an order denying CLC's motion to set aside the judgment by default. From that order
CLC now appeals.
[w]here the law commits a determination to a trial judge and his discretion is exercised with judicial balance, the decision should not be overruled unless the reviewing court is actuated, not by a desire to reach a different result, but by a firm conviction that an abuse of discretion has been committed.
Intercity Realty Co. v. Gibson, 154 W. Va. 369, 377, 175 S.E.2d 452, 457 (1970). Additionally, [o]n an appeal to this Court the appellant bears the burden of showing that there was error in the proceedings below resulting in the judgment of which he complains, all presumptions being in favor of the correctness of the proceedings and judgment in and of the trial court. Syl. pt. 2, Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973).
With these considerations in mind, we now proceed to address the issues before us.
W. Va. 74, 464 S.E.2d 593; Syl. pt. 5, White v. Berryman, 187 W. Va. 323, 418 S.E.2d
917 (1992); Syl. pt. 5, Hinerman v. Levin, 172 W. Va. 777, 310 S.E.2d 843 (1983). We
are reminded that these factors do not automatically relieve a defendant from the
consequences of a default as there still must be some showing of excusable neglect. Coury
v. Tsapis, 172 W. Va. 103, 110, 304 S.E.2d 7, 14 (1983). The decision in Parsons
emphasized that there is the necessity to show some excusable or unavoidable cause to
explain the delay in answering. Obviously, the stronger the excusable neglect or good
cause shown, the more appropriate it is to give relief against the default judgment.
Parsons, 163 W. Va. at 471, 256 S.E.2d at 762. Therefore, we must review the circuit
court's ruling based upon an application of the Parsons factors.
1. Degree of prejudice to Ms. Cook. The initial inquiry under Parsons is
a determination of the degree of prejudice to Ms. Cook if the judgment by default is
vacated. The circuit court found that substantial prejudice would occur because Ms.
Cook made the decision to dismiss the claims against the premises liability defendants.
In this appeal CLC contends that no prejudice would result from vacating the judgment by default. CLC points out that the reason the other defendants were dismissed was because the defendants had no insurance coverage. Therefore, vacating the judgment by default would not result in prejudice.
Ms. Cook admits that the other defendants were dismissed because of lack of insurance coverage. However, Ms. Cook still contends that she has been prejudiced by their dismissal. Ms. Cook argues that she would be further prejudiced because witnesses may no longer be available, and it may now be impossible to locate the John Doe driver of the car allegedly owned by CLC.
The trial court relied specifically upon Ms. Cook's dismissal of other
defendants as the basis for finding substantial prejudice. However, CLC has pointed out,
and Ms. Cook does not dispute, that the other defendants were judgment proof because of
the lack of insurance coverage. Therefore, we are not convinced that substantial
prejudice would result from setting aside the judgment by default.See footnote 9
2. Presence of material issues of fact and meritorious defenses. The
second factor to consider under Parsons is whether CLC has shown that material issues
of fact and meritorious defenses exist.See footnote 10
We have previously indicated that this factor
seeks to determine whether there is . . . reason to believe that a result different from the
one obtained would have followed from a full trial. Hinerman v. Levin, 172 W. Va. at
783-84, 310 S.E.2d at 850.
In the instant case, CLC contends that it neither owned nor possessed the car
involved in this matter. CLC submitted an affidavit from its president, Mr. Wall,
indicating that the license plate allegedly on the car that hit Ms. Cook was locked in a safe
and was not assigned to any vehicle.See footnote 11
In essence, CLC's defense denies liability and
therefore disputes material allegations in Ms. Cook's complaint. In Parsons we
determined that when a defendant disputes the material allegations of the plaintiff's
complaint, and its defense is essentially that it is not liable[,] [t]he requirement of a
meritorious defense exists. Parsons, 163 W. Va. at 474, 256 S.E.2d at 763.See footnote 12
therefore find that CLC has satisfied Parsons' second factor.
3. Significance of the interests at stake. Under Parsons' third factor we
must examine the interests at stake in the litigation.See footnote 13
CLC points out that Ms. Cook seeks
medical expenses and lost wages in excess of $65,000 in addition to noneconomic damages
for pain and suffering and punitive damages. Obviously the potential damages recoverable
in this case are significant. See Parsons, 163 W. Va. at 473, 256 S.E.2d at 763 (noting
that monetary damages in the amount of $35,000, . . . is not an insignificant claim).
4. Degree of intransigence by CLC. Under Parsons we are also obligated
to examine the degree of intransigence by CLC in responding to the complaint. The circuit
court found CLC's intransigence was substantial. According to the record in this case,
nearly eleven months passed after the complaint was filed before CLC responded to the
action by filing a motion to set aside the judgment by default. We have little hesitancy in
agreeing with the trial court that the intransigence in this case was significant.
5. Excusable neglect. Under Parsons, a defaulting party must show some
excusable or unavoidable cause to explain the delay in answering the complaint. The
circuit court found that CLC failed to provide an adequate excuse for failing to timely
respond to the complaint. In this appeal, CLC has indicated that, when it received the
summons and complaint, the papers were forwarded to its insurer. CLC appears to be
asserting that its insurer was at fault because it did not timely respond to the complaint.
This Court noted in Parsons, 157 W. Va. at 190, 202 S.E.2d at 636, that the majority
of the reported cases appear to hold that where an insurance company has misfiled papers
this amounts to excusable neglect on the part of the defendant. (Citations omitted). In
the instant case, CLC's placement of fault on its insurer is a contention that dangles
precariously on the thin line of excusable neglect.
6. Summation of Parsons' analysis. In this case we have determined that
Ms. Cook has not suffered any substantial prejudice because of CLC's untimely response
to the complaint. We have also determined that material issues of fact and meritorious
defenses exist, and that the interests at stake in the litigation are significant. These factors
must be weighed against the high level of intransigence on the part of CLC in responding
to the complaint, and CLC's questionable establishment of excusable neglect. We believe
that the balance in this case leans toward finding that the trial court abused its discretion
in denying CLC's motion to set aside the judgment by default.
Although we have grave concerns about CLC's long delay in responding to
the complaint and its questionable placement of fault on its insurer, we believe the defenses
alleged by CLC and the lack of undue prejudice to Ms. Cook present compelling reasons
to allow this case to proceed. Our cases have made clear 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. Graley v. Graley,
174 W. Va. 396, 398, 327 S.E.2d 158, 160 (1985) (citing McDaniel v. Romano, 155
W. Va. 875, 878, 190 S.E.2d 8, 11 (1972)).
Reversed and Remanded.
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, or proceedings for the following reasons: (1) Mistake, inadvertence, surprise, excusable neglect or unavoidable cause; . . . (6) any other reason justifying relief from the operation of the judgment.
we are unable to address the matter on its merits; ultimately the issue of jurisdiction is intertwined with the issue of who owned or possessed the vehicle that struck Ms. Cook. See State ex rel. United Mine Workers of America, Local Union 1938 v. Waters, 200 W. Va. 289, 300, 489 S.E.2d 266, 276 (1997) (declining to address the issue of jurisdiction because it was enmeshed in the issue of liability). We will note, however, that as a car leasing corporation, CLC would presumptively be under the jurisdiction of any state where its vehicle causes an injury. See Syl. pt. 2, Hill by Hill v. Showa Denko, K.K., 188 W. Va. 654, 425 S.E.2d 609 (1992) (Personal jurisdiction 'premised on the placement of a product into the stream of commerce is consistent with the Due Process Clause' and can be exercised without the need to show additional conduct by the defendant aimed at the forum state.) (quoting Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 117, 107 S. Ct. 1026, 1034, 94 L. Ed. 2d 92 (1987)).