Beane v. Dailey, No. 34630.

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM
Citation701 S.E.2d 848,226 W.Va. 445
PartiesSamantha BEANE, Plaintiff Below, Appellee v. Barry J. DAILEY, II, Defendant Below, Appellant.
Docket NumberNo. 34630.
Decision Date01 April 2010
701 S.E.2d 848
226 W.Va. 445


Samantha BEANE, Plaintiff Below, Appellee
v.
Barry J. DAILEY, II, Defendant Below, Appellant.


No. 34630.

Supreme Court of Appeals of
West Virginia.


Submitted Jan. 12, 2010.
Decided April 1, 2010.

701 S.E.2d 848

Syllabus by the Court

1. "Appellate review of the propriety of a default judgment focuses on the issue of whether the trial court abused its discretion in entering the default judgment." Syllabus Point 3, Hinerman v. Levin, 172 W.Va. 777, 310 S.E.2d 843 (1983).

2. " ' "A void judgment, being a nullity, may be attacked, collaterally or directly, at

701 S.E.2d 849
any time and in any court whenever any claim or right is asserted under such judgment." Syl. pt. 3, State ex rel. Vance v. Arthur, 142 W.Va. 737, 98 S.E.2d 418 (1957).' Syl. Pt. 3, State ex rel. Lemley v. Roberts, 164 W.Va. 457, 260 S.E.2d 850 (1979), overruled on other grounds by Stalnaker v. Roberts, 168 W.Va. 593, 287 S.E.2d 166 (1981)." Syllabus Point 5, State ex rel. Farber v. Mazzone, 213 W.Va. 661, 584 S.E.2d 517 (2003).

3. "A default decree rendered upon a defective substituted service of process is void for want of jurisdiction." Syllabus Point 4, Jones v. Crim, 66 W.Va. 301, 66 S.E. 367 (1909).

4. " 'To enable a court to hear and determine an action, suit or other proceeding it must have jurisdiction of the subject matter and jurisdiction of the parties; both are necessary and the absence of either is fatal to its jurisdiction.' Syl. Pt. 3, State ex rel. Smith v. Bosworth, 145 W.Va. 753, 117 S.E.2d 610 (1960)." Syllabus Point 1, Leslie Equipment Co. v. Wood Resources Co., L.L.C., 224 W.Va. 530, 687 S.E.2d 109 (2009).

Barry J. Dailey, II, Pro se Appellant.

PER CURIAM:

This case is before this Court upon appeal of an order of the Circuit Court of Kanawha County entered January 8, 2008. In that order, the circuit court granted the appellee, Samantha Beane, a default judgment and awarded her damages which followed the circuit court's July 22, 2003, entry of default against the appellant, Barry Dailey, in this personal injury action arising out of a motor vehicle accident.1 Mr. Dailey argues that he did not receive notification of the civil action against him and that he was not a resident of West Virginia at the time of the accident or during the various proceedings thereafter. Based upon the record presented to this Court, as well as the relevant statutory and case law, this Court is of the opinion that the circuit court committed reversible error. Accordingly, we reverse the circuit court and remand the case for entry of an order to set aside both the July 22, 2003, and January 8, 2008, entries of default and default judgment.

I.

FACTS

According to a complaint filed on December 23, 2002, by the appellee, Samantha Beane, she was a passenger in a vehicle operated by Thomas Oxley that was involved in a December 26, 2000, accident at the intersection of Seventh Avenue and Beatrice Street, in Charleston, West Virginia, with a vehicle driven by the appellant, Barry J. Dailey, II. Ms. Beane contends that Mr. Dailey failed to maintain a proper lookout and caused his vehicle to violently collide with the automobile in which she was a passenger. She maintains that Mr. Dailey breached his duty of care to her by failing to maintain control of his vehicle, disregarded relevant traffic control, and was otherwise negligent in the operation of his vehicle, all of which proximately and directly caused her injuries.

On April 10, 2003, Ms. Beane's summons was served upon Mr. Dailey's mother at the address of 129 Perkins Avenue, Dunbar, West Virginia. Mr. Dailey, however, did not file an answer. Thereafter, on July 8, 2003, Ms. Beane filed a motion for default supported by an affidavit by her counsel, Henry Wood. In the affidavit, Mr. Wood attested

701 S.E.2d 850
that Ms. Beane's complaint was personally served on Mr. Dailey's mother and that this could be confirmed by the return of service contained in the record. On July 22, 2003, in a one-page order, the circuit court entered an order of default and provided that a subsequent hearing would be held wherein the issues of liquidated and unliquidated damages would be addressed.

On October 1, 2005, a damages hearing was conducted, followed by Ms. Beane's filing of a submission of medical expenses. On January 8, 2008, the circuit court entered its default judgment order wherein it awarded Ms. Beane $449.86 as reimbursement of medical expenses and $1,600.00 in general compensatory damages, plus post-judgment interest. On April 25, 2008, Mr. Dailey filed an appeal of the judgment against him with this Court and stated that he was unaware of a trial, any hearings, or even the results of such hearings in the underlying case. He stated that he was not a resident of West Virginia at the time of the accident or during the pendency of the proceedings against him, and that the attempt of substitute service upon his mother at her West Virginia residence, resulted in insufficient service or process.

II.

STANDARD OF REVIEW

This case was brought as a direct appeal from a default judgment order. Ordinarily an appeal from a default judgment is made from a trial court's ruling denying a motion under Rule 55(c) of the West Virginia Rules of Civil Procedure.2 It is through Rule 55(c) that litigants usually seek to set aside a default judgment. That is the better practice; however, the defendant in this case, acting pro se, did not file a Rule 55(c) motion with the trial court. "[W]e have recognized that a pro se litigant's ... rights under the law should not be abridged simply because he or she is unfamiliar with legal procedures." Cottrill v. Cottrill, 219 W.Va. 51, 54, 631 S.E.2d 609, 612 (2006). Insofar as the defendant is unrepresented, and was not aware that he should have filed a Rule 55(c) motion with the trial court, we treat this appeal as though the defendant was denied relief under Rule 55(c). This Court pointed out in Kopelman and Associates, L.C. v. Collins, 196 W.Va. 489, 494. n. 6, 473 S.E.2d 910, 915 n. 6 (1996) that " '[w]e are not bound by the label [s] employed below, and will treat [matters] made pursuant to' the most appropriate rule." (quoting Murphy v. Smallridge, 196 W.Va. 35, 36 n. 4, 468 S.E.2d 167, 168 n. 4 (1996)).

We have further indicated that in determining whether to set aside a default judgment under Rule 55(c), a court must consider the factors set out in Syllabus Point 3 of Parsons v. Consolidated Gas Supply Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979), and any ground for relief under Rule 60(b). See Syllabus Point 5, Hardwood Group v. Larocco, 219 W.Va. 56, 631 S.E.2d 614 (2006) ("In addressing a motion to set aside a default judgment, 'good cause' requires not only considering the factors set out in Syllabus point 3 of Parsons v. Consolidated Gas Supply Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979), but also requires a showing that a ground set out under Rule 60(b) of the West Virginia Rules of Civil Procedure has been satisfied.").

This Court has held that: "[a]ppellate review of the propriety of a default judgment focuses on the issue of whether the trial court abused its discretion in entering the default judgment." Syllabus Point 3, Hinerman v. Levin, 172 W.Va. 777, 310 S.E.2d 843 (1983). In the discussion that follows, however, it is clear that the default judgment in this case is void because the trial court did not have personal jurisdiction over the defendant, therefore we need not perform a Parsons' analysis. See Franklin D. Cleckley, et al., Litigation Handbook on West Virginia Rules of Civil Procedure, § 55(b)(2) (3d ed. Cum.Supp.2010) ("A default judgment rendered without personal jurisdiction

701 S.E.2d 851
is void and, therefore, is a per se abuse of discretion if the trial court that entered the judgment lacked jurisdiction."). Where, however, "the issue on appeal from the circuit court is clearly a question of law ...," we apply a de novo standard of review. Syllabus Point 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). With these principles in mind, the appellant's arguments will be considered.

III.

DISCUSSION

In this case, Mr. Dailey argues that the circuit court committed reversible error when it entered a default judgment against him and awarded Ms. Beane damages. Specifically, Mr. Dailey maintains that he was not aware of any "hearings, trials, or verdicts" in the lawsuit brought against him by Ms. Beane. He contends that his absence and lack of knowledge of the lawsuit was due to the fact that he was not a resident of West Virginia at the time. Mr. Dailey states that as of May of 2000, he was a service member in the United States Air Force, stationed in Missouri at Whiteman Air Force Base and was not a resident of West Virginia during any of the proceedings in which he was named as a defendant by Ms. Beane.3

Conversely, Ms. Beane did not file a response to Mr. Dailey's appeal with this Court. The Clerk of this Court sent correspondence to Ms. Beane's counsel below, Henry Wood; however, in a November 20, 2009, letter from Mr. Wood, he advised the Court that he was unsuccessful in contacting Ms. Beane and that he had not been hired nor did he have the authority to represent her on appeal. As a consequence, this Court does not have the benefit of Ms. Beane's response to any of Mr. Dailey's appellate arguments. Nonetheless, we have thoroughly reviewed the entire record before us and are mindful that "[i]t has always been the policy of this Court to protect each litigant's day in court." Litten v. Peer, 156 W.Va. 791, 797, 197 S.E.2d 322, 328 (1973).

The underlying argument proffered by Mr. Dailey is a matter of procedure that concerns a lack of proper notice and service under Rule 4(d) of the Rules of Civil Procedure. Rule 4(d) provides, in part,

Manner of Service. Personal or substitute service shall be made in the following manner:
(1) Individuals. Service upon an individual other than an infant, incompetent person, or
...

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12 practice notes
  • Tudor's Biscuit World of Am. v. Critchley, No. 11–0543.
    • United States
    • Supreme Court of West Virginia
    • 13 Junio 2012
    ...Settlement Conference on September 8, 2010, Tudor's brought to the circuit court's attention the recently issued case of Beane v. Dailey, 226 W.Va. 445, 701 S.E.2d 848 (2010)(per curiam), which Tudor's argued obviated the reasonable time requirement in the case of void default judgments, re......
  • State v. J.S., No. 13–0890.
    • United States
    • Supreme Court of West Virginia
    • 27 Marzo 2014
    ...confinement after the adjudication of the burglary charge, we find that the most convenient authority is the Act. See Beane v. Dailey, 226 W.Va. 445, 447, 701 S.E.2d 848, 850 (2010) (“We are not bound by the label [s] employed below, and will treat [matters] made pursuant to the most approp......
  • York v. Prop. & Cas. Ins. Co., CIVIL ACTION NO. 2:12-cv-06582
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • 3 Octubre 2013
    ...registered agent in Charleston, West Virginia. (Service Information [Docket 5-3]). For support, Hartford cites to Beane v. Dailey, 701 S.E.2d 848, 852 (W. Va. 2010), arguing that because the long-arm statute is a means of obtaining jurisdiction, its procedural requirements "must be strictly......
  • Tabb v. Jefferson Cnty. Comm'n, No. 16-0519
    • United States
    • Supreme Court of West Virginia
    • 2 Junio 2017
    ...reflects that it was mailed to the County Commission by petitioner, not the circuit clerk.6 In syllabus point 3 of Beane v. Dailey, 226 W.Va. 445, 701 S.E.2d 848 (2010), we reiterated that jurisdiction does not exist where service of process is defective. See State ex rel. West Virginia Tru......
  • Request a trial to view additional results
12 cases
  • Tudor's Biscuit World of Am. v. Critchley, No. 11–0543.
    • United States
    • Supreme Court of West Virginia
    • 13 Junio 2012
    ...Settlement Conference on September 8, 2010, Tudor's brought to the circuit court's attention the recently issued case of Beane v. Dailey, 226 W.Va. 445, 701 S.E.2d 848 (2010)(per curiam), which Tudor's argued obviated the reasonable time requirement in the case of void default judgments, re......
  • State v. J.S., No. 13–0890.
    • United States
    • Supreme Court of West Virginia
    • 27 Marzo 2014
    ...confinement after the adjudication of the burglary charge, we find that the most convenient authority is the Act. See Beane v. Dailey, 226 W.Va. 445, 447, 701 S.E.2d 848, 850 (2010) (“We are not bound by the label [s] employed below, and will treat [matters] made pursuant to the most approp......
  • York v. Prop. & Cas. Ins. Co., CIVIL ACTION NO. 2:12-cv-06582
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • 3 Octubre 2013
    ...registered agent in Charleston, West Virginia. (Service Information [Docket 5-3]). For support, Hartford cites to Beane v. Dailey, 701 S.E.2d 848, 852 (W. Va. 2010), arguing that because the long-arm statute is a means of obtaining jurisdiction, its procedural requirements "must be strictly......
  • Tabb v. Jefferson Cnty. Comm'n, No. 16-0519
    • United States
    • Supreme Court of West Virginia
    • 2 Junio 2017
    ...reflects that it was mailed to the County Commission by petitioner, not the circuit clerk.6 In syllabus point 3 of Beane v. Dailey, 226 W.Va. 445, 701 S.E.2d 848 (2010), we reiterated that jurisdiction does not exist where service of process is defective. See State ex rel. West Virginia Tru......
  • Request a trial to view additional results

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