Albright, Justice, concurring,
I write separately to express
certain concerns that the majority's opinion either fails to address or that
are in need of further clarification. When possible, this Court clearly prefers
that legal matters be determined on their merits. See McDaniel v. Romano,
155 W.Va. 875, 879, 190 S.E.2d 8, 11 (1972). At the same time, however, this
Court fully recognizes the validity of and supports the enforceability of
a default judgment that is properly obtained. In light of the finality of
such judgments, barring successful Rule 60(b) motions, this Court has a duty
to ensure that the requirements necessary for the issuance of default judgments
are properly applied.
Thus, in establishing as
a new point of law that [g]enerally, under Rule 55(b)(1) of the
West Virginia Rules of Civil Procedure, when the damages sought by a plaintiff
involve a sum certain or a sum which can by computation be made certain, a
judgment by default may be entered against a party who has defaulted as to
liability without prior notice to that party, the majority appears to
gloss over the essential distinction between default judgments obtained under
Rule 55(b)(1) and (b)(2). Only where no appearance has been made by the defendant,
can a default judgment be entered under Rule 55(b)(1).
(See footnote 1) See 10A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure:
Civil § 2683 at 24-25 (3rd ed. 1998) (stating that Rule
55(b)(1) applies only to parties who have never appeared in the action;
it does not apply when a party appears and then merely fails to participate
in some subsequent stage of the proceedings).
In attempting to distinguish
those instances that properly fall under Rule 55(b)(1) from those required to
proceed under Rule 55(b)(2), the majority should have followed the distinction
used in the rule itself. Rule 55(b)(1) is labeled to apply only to those limited
instances when a clerk is authorized to enter the default judgment, while Rule
55(b)(2) covers all the remaining instances, which require the active involvement
of the circuit court judge in the process of entering judgment. See generally,
Wright, supra at § 2684 (noting limited instances when default judgment
can be entered under Rule 55(b)(1) and recognizing that in all other instances,
including those in which defendant is in default for a reason other than
a failure to appear, application for judgment must proceed under Rule
Other courts that have considered this issue have made clear that not just any oral communication will suffice to constitute an appearance for purposes of invoking the notice requirement of Rule 55(b)(2). As the court made clear in Alliance Group, Inc. v. Rosenfield, 685 N.E.2d 570 (Ohio App. 1996), [a] telephone call between parties would not constitute an appearance unless circumstances give the call some legal effect. Id. at 577. Generally, an affirmative act is required that manifests an intention to defend the action. See id.; accord Miamisburg Motel v. Huntington Nat'l Bank, 623 N.E.2d 163, 170 (Ohio App. 1993) (recognizing that telephone call that indicates to moving party clear purpose to defend the suit is sufficient to constitute appearance and trigger notice requirements under Rule 55); see generally Scott K. Zesch, What Constitutes Appearance under Rule 55(b)(2) of Federal Rules of Civil Procedure, Providing that if Party Against Whom Default Judgment is Sought has Appeared in Action, that Party must be Served with Notice of Application for Judgment, 139 A.L.R. Fed. 603, § 9[a], [b] (1997). Not all conversations, however, will be sufficient to amount to an appearance under the rule. See, e.g., Ryan v. Collins, 481 S.W.2d
85, 88 (Ky. 1972) (holding that defendant had not voluntarily taken a step in the main action that showed or from which it might be inferred that he had the intention of making some defense where defendant had conversation with plaintiff's attorney regarding pending action and plaintiff's counsel merely instructed defendant to take summonses to insurance company).
While the issue of whether an appearance results from an oral communication will necessarily be a factual determination based on the nature of the conversation, as a general rule an appearance will result from a communication that conveys a clear intent to defend against the lawsuit at issue and may also be implied by language that indicates the defendant has taken or intends to take some steps related to the pending action that are either beneficial to the defendant or detrimental to the plaintiff's interests. See Heleasco Seventeen, Inc. v. Drake, 102 F.R.D. 909, 912 (D. Del. 1984). Missing from the majority's adoption of this new point of law permitting an oral communication to constitute an appearance is the clarification that the communication must involve an indication on the defendant's part to take some action relative to the lawsuit. Absent such an affirmative indication, an oral communication is unlikely to rise to the level of the appearance necessary to trigger the notice requirements of Rule 55(b)(2).
Based on the foregoing, I respectfully concur with the majority's decision.