B.J. Hauling & Excavating Co. v. Inwood Quarry, Inc., No. 13-0760

CourtSupreme Court of West Virginia
Writing for the CourtRobin Jean Davis
Decision Date13 June 2014
PartiesB.J. Hauling and Excavating Company, Inc., Defendant, Petitioner v. Inwood Quarry, Inc., Plaintiff, Respondent
Docket NumberNo. 13-0760

B.J. Hauling and Excavating Company, Inc., Defendant, Petitioner
v.
Inwood Quarry, Inc., Plaintiff, Respondent

No. 13-0760

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

ISSUED: June 13, 2014


(Berkeley County 12-C-482)

MEMORANDUM DECISION

Petitioner B.J. Hauling and Excavating Company, Inc., by counsel Sherman L. Lambert, appeals the final judgment order entered by the Circuit Court of Berkeley County on July 1, 2013, denying, in part, and granting, in part, petitioner's motion to set aside judgment. Respondent Inwood Quarry, Inc., by counsel Shannon P. Smith and Erin J. Webb, responds in support of the circuit court's order.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner purchased goods and services from respondent between October 15, 2010, and October 31, 2011. On November 10, 2011, petitioner attempted to pay off multiple past due invoices by issuing and delivering a check to respondent in the amount of $23,667.40. However, at petitioner's request, petitioner's bank stopped payment on the check and respondent was charged a bad check fee in the amount of $15.00.1 On February 2, 2012, respondent's counsel sent a letter to petitioner requesting payment of its past due account balance in the amount of $23,271.65.2 In that letter respondent also warned that a lawsuit would be filed if the account balance was not paid within thirty days.

Respondent filed suit in the Circuit Court of Berkeley County on June 18, 2012, seeking $23,271.76 in compensatory damages based on allegations surrounding the purchase of those goods and services. Petitioner was served through the Secretary of State's office on June 21, 2012. On July 24, 2012, Barbara J. Marrone, president of the petitioner company, faxed a letter

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to respondent's counsel stating, in part, that "our answer is no - we do not owe what you say we do. We do not owe any interest. We do owe the principal amount that is the answer to the complaint that you filed against us." On July 31, 2012, respondent filed its "Motion for Judgment on the Pleadings or, in the Alternative, for Default Judgment," requesting $23,271.65 in compensatory damages, plus pre-judgment interest, court costs, and attorney's fees. Respondent's counsel served that motion by mail on July 31, 2012.

On August 6, 2012, the circuit court granted respondent's motion and entered its "Order Granting Plaintiff's Motion for Default Judgment." In doing so, it considered the fact that Ms. Marrone was not a licensed attorney and could not represent a corporation. The circuit court also looked to the fact that petitioner had been sent every motion and court order without a response of any kind. On August 23, 2012, a proposed "Order Establishing Payment of Attorney's Fees" was submitted to the court, and respondent provided a copy of that proposed order to petitioner through Ms. Marrone. Given that petitioner did not object to the proposed order and did not file a response, the circuit court entered that order on September 7, 2012. That "Amended Order Granting Judgment for Plaintiff" awarded respondent $23,271.65 in compensatory damages and pre-judgment interest at a rate of 7% per annum from October 15, 2010 (totaling $3,393.78), attorney's fees in the amount of $1,435, and $185 in costs. An "Order Establishing Payment of Attorney's Fees" was entered on September 12, 2012, and on that same date, a certificate of judgment was recorded in the Office of the County Clerk of Berkeley County.

On February 19, 2013, respondent attempted to collect on the judgment by issuing a writ of execution. On April 29, 2013, petitioner made an appearance by counsel and filed and served an answer, a "Motion to Stay Execution of Default Judgment, Entered on September 7, 2012, and Stay...

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