Drumheller v. Fillinger, No. 11–0681.

CourtSupreme Court of West Virginia
Writing for the CourtJustice DAVIS concurs and will write a separate and concurring opinion.
Decision Date25 October 2012
PartiesVictoria DRUMHELLER, et al., Petitioners v. James and Diane FILLINGER, Respondents.
Docket NumberNo. 11–0681.

230 W.Va. 26
736 S.E.2d 26

Victoria DRUMHELLER, et al., Petitioners
v.
James and Diane FILLINGER, Respondents.

No. 11–0681.

Supreme Court of Appeals of
West Virginia.

Submitted Sept. 19, 2012.
Decided Oct. 25, 2012.


[736 S.E.2d 27]



Syllabus by the Court

1. “A motion to vacate a default judgment 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.” Syl. Pt. 3, Intercity Realty Co. v. Gibson, 154 W.Va. 369, 175 S.E.2d 452 (1970).

2. “The inherent power of courts to sanction misconduct includes the authority to enter default judgment orders in appropriate circumstances.” Syl. Pt. 4, State ex rel. Richmond American Homes v. Sanders, 226 W.Va. 103, 697 S.E.2d 139 (2010).

3. Barring any statutory exception, the participation of a party or his counsel in a non-jury trial without raising an objection constitutes a waiver of the right to a jury trial.


Brett Offutt, Offutt Law Office, Harpers Ferry, WV, for Petitioners.

Christopher P. Stroech, Arnold & Bailey, Shepherdstown, WV, for Respondents.


McHUGH, Justice:

Petitioner Victoria Drumheller and three corporate entities 1 seek relief from the default judgment entered against them by the Circuit Court of Jefferson County on October 16, 2009, in connection with a breach of contract action filed by Respondents James and Diane Fillinger. Petitioners assert that they were wrongfully denied the right to have a jury determine the amount of damages they owed to Respondents in connection with the default judgment. In addition, Petitioners assert that the damage award was not supported by the evidence and that service of process was not properly effected with regard to the corporate defendants.2 Upon our careful review of this matter, we conclude that the trial court did not commit error in entering the subject default judgment or in holding a bench trial on the issue of damages. Accordingly, the decision of the trial court is affirmed.

I. Factual and Procedural Background

In March 2006, Petitioner Drumheller employed James Fillinger, a general contractor, to perform various services for her such as hauling trash and materials, cleaning, and remodeling. This work was performed pursuant to an undated contract which provided, inter alia, that Mr. Fillinger was to receive $600.00 3 per day; that advance agreement was required regarding the work to be performed; that inspection would occur prior to payment; that weekly bills would be issued; and that a ten percent late fee would be assessed for bills not paid in full after thirty days.

Pursuant to this agreement, Mr. Fillinger performed assundry services for Ms. Drumheller from March 2006 until March 2007. When remitting payment for this work, Ms. Drumheller used either a personal check or a business check from either D.F. Briarpatch, LLC or Engineering Construction Support, Inc. The corporate checks bore the same post office address as that printed on Ms. Drumheller's personal checks. Alleging that they had not been fully compensated for work Mr. Fillinger performed for Ms. Drumheller, Respondents filed a complaint with the circuit court on October 2, 2008. In seeking relief under theories of contract, unjust enrichment, and promissory estoppel, Respondents included a demand for a jury trial.

On November 25, 2008, Ms. Drumheller filed a pro se answer on behalf of herself and the three corporate defendants.4 The record

[736 S.E.2d 28]

indicates that Respondents sent written discovery requests to the Petitioners on or around April 6, 2009. Petitioners never responded to those discovery requests. By letter dated August 25, 2009, Respondents sought to schedule the deposition of Ms. Drumheller. That discovery request was similarly ignored. A pretrial conference was scheduled for September 16, 2009, at 11:00 a.m. While Respondents appeared by counsel for the pretrial conference, Petitioners failed to appear by counsel or in person.5 Given the non-appearance of Petitioners at the pretrial conference and their failure to participate in discovery, Respondents orally moved the trial court for a default judgment.

By order entered on October 16, 2009, the trial court granted a default judgment against Petitioners. Because the damages at issue were not for a sum certain, the circuit court set a hearing for November 23, 2009, which was later rescheduled to January 5, 2010. Respondents and Petitioners, who were represented by counsel at this point,6 presented evidence at the damages hearing. Following the hearing, but before the entry of the final judgment order, Petitioners' counsel filed a motion to vacate the default judgment or, alternatively, to reduce the damages sought. This motion was filed solely on behalf of Ms. Drumheller. In its judgment order of March 22, 2011, the trial court upheld the entry of the default judgment and entered judgment for the Respondents in the amount of $49,400.7

Through this appeal, Petitioners seek to reverse the entry of the default judgment on grounds that the issue of damages should have been determined by a jury. Alternatively, Petitioners seek to have this Court find that the award of damages was not supported by the evidence introduced by Respondents at the January 5, 2010, hearing.8

II. Standard of Review

Our review of the trial court's ruling on Petitioners' motion to vacate the default judgment is governed by the following standard: “A motion to vacate a default judgment 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.” Syl. Pt. 3, Intercity Realty Co. v. Gibson, 154 W.Va. 369, 175 S.E.2d 452 (1970). With regard to the question of law concerning Petitioners' entitlement to a jury trial on the issue of damages, that matter is subject to our plenary powers of review. See Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.”). With these standards in mind, we proceed to determine whether the trial court committed error by holding a bench trial rather than a jury trial on the issue of damages.

III. Discussion
A. Waiver of Right to Jury Trial

Petitioners readily acknowledge that the issue before us of whether a jury trial is required following the entry of a default judgment for damages that are not for a sum certain is an issue of first impression. To support their position that a jury trial must be held where a jury demand has been made by one of the parties, Petitioners rely upon decisions reached by courts in Michigan and Florida. In considering this issue in Wood v. Detroit Automobile Inter–Insurance Exchange, 413 Mich. 573, 321 N.W.2d 653 (1982), the Michigan Supreme Court examined the provisions of its general court rules (“GCR”) on the issue of the right to a jury trial. Under GCR 508, either party may

[736 S.E.2d 29]

demand a jury trial and such a demand “may not be withdrawn without the consent, expressed in writing or in court, of the parties or their attorneys.” Id. at 658 (quoting GCR 1936, 508). Because both parties had made a proper demand for a jury in Wood, the Supreme Court framed the issue as “whether defendant's default 9 somehow canceled the right or was the functional equivalent of a waiver.” 321 N.W.2d at 658 (footnote supplied).

While the intermediate court of appeals had ruled against the defendant's right to a jury trial in Wood in reliance on an earlier decision, Asmus v. Barrett,10 the Michigan Supreme Court viewed the language from the earlier decision 11 as dicta due to the defendant's failure in Asmus to object to the trial court's denial of the jury demand. Rejecting the position that a default judgment functions as a waiver of the right to a jury trial, the Michigan Supreme Court held “that a defaulting party who has properly invoked his right to jury trial retains that right if a hearing is held to determine the amount of recovery.” 321 N.W.2d at 659 (emphasis in original); accord Zaiter v. Riverfront Complex, Ltd., 463 Mich. 544, 620 N.W.2d 646 (2001); but cf. Haynes v. Hannah, 2002 WL 31938329 (Mich.App.2002) (ruling that defendant's failure to appear at jury trial on liability which resulted in entry of default judgment constituted waiver of right to jury trial on damages).

In deciding whether a hearing was required in Wood, the Michigan Supreme Court looked to its procedural rules governing default judgments. While the applicable procedural rule, GCR 520, authorized the trial court to hold further proceedings on the issue of damages at its discretion, the rule further addressed the issue of whether that hearing should be a bench trial or a jury trial. Under the Michigan rule governing default judgments, the trial court was mandated to “accord a right of trial by jury to the parties when and as required by the constitution.” 12321 N.W.2d at 659–60 (quoting Mich. GCR 1963, 520). Based on the inclusion of this language in the rule, the court determined in Wood that it “was obliged to accord defendant its properly preserved right to jury trial.” Zaiter, 620 N.W.2d at 652 (discussing basis for ruling reached in Wood ).13

In Curbelo v. Ullman, 571 So.2d 443 (Fla.1990), the Florida Supreme Court considered whether the entry of a default judgment against a defendant for failing to answer or otherwise plead to the complaint serves as a bar to the request for a jury trial made by the plaintiff. In deciding this issue, the court focused on the language of the Florida Rule of Civil Procedure that prevents a jury demand from being withdrawn “without the consent of the parties.” Id. at 444 (citing Fla.R.Civ.P. 1.430(d)). Because the procedural rule requires an affirmative act such as a writing or an announcement in open court to waive the...

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3 practice notes
  • Lexon Ins. Co. v. Cnty. Council of Berkeley Cnty., No. 14–0215.
    • United States
    • Supreme Court of West Virginia
    • March 11, 2015
    ...452 (1970) [, overruled on other grounds by Cales v. Wills, 212 W.Va. 232, 569 S.E.2d 479 (2002) ].Syl. pt. 1, Drumheller v. Fillinger, 230 W.Va. 26, 736 S.E.2d 26, 27 (2012). In other words, “ ‘ “[a]ppellate review of the propriety of a default judgment focuses on the issue of whether the ......
  • James Wilson Douglas, L.C. v. Morton, No. 16-1144
    • United States
    • Supreme Court of West Virginia
    • January 8, 2018
    ...Lexon Ins. Co. v. Cnty Council of Berkeley Co., 235 W.Va. 47, 50, 770 S.E.2d 547, 550 (2015) (quoting Syl. pt. 1, Drumheller v. Fillinger, 230 W.Va. 26, 736 S.E.2d 26, 27 (2012). In other words, "[a]ppellate review of the propriety of a default judgment focuses on the issue of whether the t......
  • B.J. Hauling & Excavating Co. v. Inwood Quarry, Inc., No. 13-0760
    • United States
    • Supreme Court of West Virginia
    • June 13, 2014
    ...of discretion.' Syl. Pt. 3, Intercity Realty Co. v. Gibson, 154 W.Va. 369, 175 S.E.2d 452 (1970)." Syl. Pt. 1, Drumheller v. Fillinger, 230 W.Va. 26, 736 S.E.2d 26 (2012). Further,"'[i]n determining whether a default judgment should be entered in the face of a Rule 6(b) motion or vacated up......
3 cases
  • Lexon Ins. Co. v. Cnty. Council of Berkeley Cnty., No. 14–0215.
    • United States
    • Supreme Court of West Virginia
    • March 11, 2015
    ...452 (1970) [, overruled on other grounds by Cales v. Wills, 212 W.Va. 232, 569 S.E.2d 479 (2002) ].Syl. pt. 1, Drumheller v. Fillinger, 230 W.Va. 26, 736 S.E.2d 26, 27 (2012). In other words, “ ‘ “[a]ppellate review of the propriety of a default judgment focuses on the issue of whether the ......
  • James Wilson Douglas, L.C. v. Morton, No. 16-1144
    • United States
    • Supreme Court of West Virginia
    • January 8, 2018
    ...Lexon Ins. Co. v. Cnty Council of Berkeley Co., 235 W.Va. 47, 50, 770 S.E.2d 547, 550 (2015) (quoting Syl. pt. 1, Drumheller v. Fillinger, 230 W.Va. 26, 736 S.E.2d 26, 27 (2012). In other words, "[a]ppellate review of the propriety of a default judgment focuses on the issue of whether the t......
  • B.J. Hauling & Excavating Co. v. Inwood Quarry, Inc., No. 13-0760
    • United States
    • Supreme Court of West Virginia
    • June 13, 2014
    ...of discretion.' Syl. Pt. 3, Intercity Realty Co. v. Gibson, 154 W.Va. 369, 175 S.E.2d 452 (1970)." Syl. Pt. 1, Drumheller v. Fillinger, 230 W.Va. 26, 736 S.E.2d 26 (2012). Further,"'[i]n determining whether a default judgment should be entered in the face of a Rule 6(b) motion or vacated up......

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