REVERSED AND REMANDED
Rose Marie Walsh
Westover, West Virginia
JUSTICE STARCHER delivered the Opinion of the Court.
2. The term convict in Rule 55(b)(2)  of the West Virginia Rules of Civil Procedure (default), and the term incarcerated convict in Rule 10(d)  of the West Virginia Rules of Civil Procedure for the Magistrate Courts (Default Judgment) and W.Va. Code, 50-4-10(a)(2)(A)  (magistrate court - Default judgment; confession of judgment), must be read as meaning incarcerated person.
is a pro se appeal from a default judgment, taken in the magistrate
court against the appellant, his company, and an employee, when the appellant
was incarcerated in a county jail. The circuit court affirmed the default
judgment. It is from that judgment by the circuit court that the appellant
appeals; we reverse the circuit court's judgment and remand the case for further
The appellant is the owner of Black's Auto Repair & Towing, Inc. (Black's), a corporation operating a garage and towing business in Monongalia County. Homer Wilson, Jr. performed mechanical work for Black's.
In August of 1998, the appellee, Anthony Johnson, delivered a 1988 Cadillac Coupe DeVille belonging to the appellees/plaintiffs, Rose Marie Walsh and Anthony Johnson, to Black's for repairs. The Cadillac had engine problems. (See footnote 1) Mr. Wilson removed the original engine and power train, and he installed a used engine for the Cadillac; unfortunately, the replacement engine was apparently defective, and additional repairs were required. The appellees claim that Homer Wilson Jr., failed to repair the Cadillac in a diligent manner. More specifically, the car apparently sat at Black's, in pieces and unrepaired, for approximately eighteen months.
In February of 2000, Mr. Muncy was jailed for allegedly failing to meet his child support obligations; he was released from jail in May of 2000. While Mr. Muncy was jailed, Mr. Wilson allegedly assumed the duties of manager of Black's. On February 16, 2000, the appellees filed suit in the Magistrate Court of Monongalia County against Mr. Muncy, Black's, and Mr. Wilson, claiming that the defendants wrongfully refused to fix and/or return the car in the working condition it in which was allegedly received.
Mr. Muncy concedes that he was personally served with the appellees' complaint while he was in jail. Mr. Muncy says that he hand drafted an answer and placed the same in the hands of Mr. Homer Wilson, Jr. to be returned to the court as an answer, and that Mr. Wilson failed to answer the complaint on his own behalf or with the answer for the corporation or of Mr. Muncy. The magistrate court also had a copy of the complaint served on the Secretary of State, who mailed it to the listed registered agent for Black's; this agent, however, was apparently not in contact with Mr. Muncy. Mr. Wilson was apparently personally served.
On April 24, 2000, because no answer to the complaint had been filed, a magistrate entered a default judgment against Mr. Muncy and the other defendants for $4,550.00, plus $105.00 court costs. (See footnote 2) When Mr. Muncy was released from jail on May 8, 2000, he attempted to appeal the default judgment to the circuit court. The magistrate required a $4,550.00 bond to stay the execution of the magistrate's order, but Mr. Muncy could not obtain the funds. Mr. Muncy's two tow trucks were seized by the Monongalia County Sheriff to satisfy the judgment. Mr. Muncy filed a motion with the circuit court to allow a late-filed appeal of the default judgment. The circuit court denied the motion.
A more important underlying
issue is raised by the fact that the complaint was served on Mr. Muncy while
he was in jail; and he was, it appears, therefore unable to adequately respond
to and defend against the complaint, and as a consequence, a default judgment
[C]ourts look with disfavor on judgments obtained by default. 'The law strongly favors an opportunity to a defendant to make defense to an action against him.' Intercity Realty Co. v. Gibson, 154 W.Va. 369, 376, 175 S.E.2d 452, 456 (1970).
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 2, Jackson General Hosp. v. Davis, 195 W.Va. 74, 464 S.E.2d 593 (1995) (citations omitted).
An analysis of these factors suggests that the default judgment should be reversed and this matter remanded. The degree of prejudice suffered by Mr. Muncy was significant. The judgment resulted in the seizure of both of Mr. Muncy's tow trucks. Without these trucks, Mr. Muncy is unable to operate his garage service. There are genuine issues of material fact regarding the repairs to the car. Furthermore, Mr. Muncy was clearly not intransigent regarding his appearance in court; he was incapable of fully responding to the complaint because of his incarceration. It is unclear whether the magistrate was aware of the fact that Mr. Muncy was absent from court due to his incarceration. These facts, taken together, suggest that the default judgment should have been set aside.
West Virginia Magistrate Court Rules of Civil Procedure, Rule 10(d)  (default judgment) states in pertinent part:
No default judgment may be entered against a party who is . . . an incarcerated convict unless such person is represented by a guardian, committee resident, or guardian ad litem.
A counterpart to the magistrate court rule for the circuit courts is found in West Virginia Rules of Civil Procedure, Rule 55(b)(2)  (Default), which states (in pertinent part):
. . . no judgment by default shall be entered against an infant, incompetent person, or convict unless represented in the action by a guardian, guardian ad litem, committee, conservator, curator or other representative who has appeared therein. . . .
The basis for these rules of procedure is, in part, certain statutes, to-wit: W.Va. Code, 50-4-10  (magistrate courts -- Default Judgment; confession of judgment); (See footnote 3) W.Va. Code, 50-5-3 (1978) (magistrate courts -- Appointment of guardian ad litem); (See footnote 4) and W.Va. Code, 28-5-33  (Appointment of committee of convict; bond) and W.Va. Code, 28-5-36  (Suits by or against convict or committee); (See footnote 5) all of which deal with how certain legal affairs of convicts, who are defined by statute as persons who are serving a penitentiary sentence of a year or more, W.Va. Code, 28-5-33  (at n.5 infra), are to be managed.
The historic premise of these statutes and related rules of procedure (See footnote 6) is the principle that a person imprisoned for a felony (as opposed to an incarcerated pre-trial detainee or misdemeanant) suffers a civil death or civil disability. (See footnote 7) That is, under this principle, as a result of the person's felony incarceration status, the person has a status-based legal disability similar to that of an infant or incompetent.
However, we have recognized that modern principles of due process and access to the courts that apply to all incarcerated persons can modify these older principles. For example, in Craigo v. Marshall, 175 W.Va. 72, 331 S.E.2d 510 (1985), we allowed an incarcerated felon to file a lawsuit without a committee or guardian ad litem, also recognizing that if a valid waiver was present, an incarcerated felon could be sued while incarcerated -- in both cases, despite his civil death. We held in Craigo that, In the absence of an express written waiver of his right to a committee under W.Va.Code 28-5-36, or a guardian ad litem under Rule 17(c) of the West Virginia Rules of Civil Procedure, a suit cannot be directly maintained against a prisoner. Syllabus Point 2, Craigo, supra.
The federal courts have held on due process and equal protection grounds that prisoners cannot be denied access to the courts. [Citations omitted] Craigo v. Marshall, 175 W.Va. at 74, 331 S.E.2d at 513 (emphasis added). We believe that in modern times, the legal boundaries applicable to incarcerated persons must be based on principles of due process, fairness, and adequate legal protection for all prisoners, not just incarcerated felons.
We note that the enactment of W.Va. Code, 31-20-1 et seq. established the process of closing county jails and replacing them with regional jails. The nature of the regional jail system makes it more difficult for an incarcerated person in jail to obtain counsel or otherwise respond to a legal action. Our former system, where the county jail was often across the street or attached to the courthouse, allowed an incarcerated person awaiting trial or serving a jail sentence a greater degree of access to the legal system than is the case with regional jails. In light of these changes in our correctional system, there is a need to assure that all incarcerated individuals have equal protection under the law to assure their rights of due process and access to the courts.
In Syllabus Point 2 of Chandos,
Inc. v. Samson et al., 150 W.Va. 428, 146 S.E.2d 837 (1966), this Court
A valid default judgment under Rules 37(d) and 55(b)(2), R.C.P., cannot be entered against a defendant who is at the time of the entry of such judgment an . . . incarcerated convict, unless represented by a guardian ad litem, committee, curator, or other representative, and if a default judgment is entered against a defendant under such disability not properly represented it should be set aside upon proper motion.
The purpose of an order appointing a guardian ad litem is to protect the person under disability. Jackson, supra,195 W.Va. at 77, 464 S.E.2d at 596. With respect to default judgments, we believe that this disability-based protection must be extended to all incarcerated persons. We therefore hold that the term convict in Rule 55(b)(2)  of the West Virginia Rules of Civil Procedure (default), and the term incarcerated convict in Rule 10(d)  of the West Virginia Rules of Civil Procedure for the Magistrate Courts (Default Judgment) and in W.Va. Code, 50-4-10(a)(2)(A)  (magistrate court - Default judgment; confession of judgment) must be read as meaning incarcerated person.
While service on the other defendants in the instant case may have been technically sufficient, Mr. Muncy apparently had the responsibility for seeing that an answer to the complaint was filed by all of the defendants. Mr. Muncy's incarceration substantially hindered his ability to fulfill these responsibilities, leading to a default judgment against the other defendants.
Applying the foregoing principles, because Mr. Muncy was incarcerated at the time the default judgment was entered against him, and he did not have a guardian ad litem, guardian, committee, committee resident, curator, or other like fiduciary, as required by W.Va. Code, 55-4-10 (2)(A)  and Magistrate Court Rules of Civil Procedure, Rule 10(d), he is entitled to reversal of the default judgment against him personally. We also conclude that Mr. Muncy's relationship with Black's and Mr. Wilson was such that the default judgments against them should also be set aside.
magistrate court] against a person who is an infant, incompetent person or incarcerated convict unless such person is represented in the action by a guardian ad litem, guardian, committee, curator or other like fiduciary.
In the event said convict has no such estate, or his estate does not exceed
one thousand dollars, reference to a fiduciary commissioner shall not be necessary.
. . .
W.Va. Code, 28-5-36  states:
Such committee may sue and be sued in respect to debts due to or from such convict, and respecting all other causes of action for which the convict might sue or be sued had no such incarceration taken place, and shall have the privilege of an administrator as to the right of retaining his own debt. No action or suit shall be instituted by or against such convict after he is incarcerated, and all actions or suits to which he is a party at the time of his incarceration shall abate, and continue so until revived by or against the committee, whose duty it shall be to prosecute or defend, as the case may be. Any judgment recovered against such committee shall be a lien upon the lands of the convict to the same extent as if recovered against the convict before the conviction. But the plaintiff in any action, suit or proceeding against the committee of a convict shall not be examined as a witness in his own behalf in such action, suit or proceeding in respect to any transaction or communication had personally with the convict, unless such committee shall be examined as a witness in his own behalf in respect to such transaction or communication, or such convict personally testifies, or his testimony in respect to such transaction or communication is given in evidence.