Fredericks v. Mongold, No. 19-1106

CourtSupreme Court of West Virginia
Writing for the CourtChief Justice Evan H. Jenkins Justice Elizabeth D. Walker Justice Tim Armstead Justice John A. Hutchison Justice William R. Wooton
PartiesAmanda Fredericks, Administratrix of the Estate of Keith Allen Mongold, deceased, Defendant Below/Petitioner v. Kevin W. Mongold and Misty Lynn Mongold, Plaintiffs Below/Respondents
Docket NumberNo. 19-1106
Decision Date07 May 2021

Amanda Fredericks,
Administratrix of the Estate of Keith Allen Mongold, deceased, Defendant Below/Petitioner
v.
Kevin W. Mongold and Misty Lynn Mongold, Plaintiffs Below/Respondents

No. 19-1106

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

May 7, 2021


(Grant County 18-C-16)

MEMORANDUM DECISION

Petitioner Amanda Fredericks, Administratrix of the Estate of Keith Allen Mongold, deceased,1 by counsel Michael C. Cardi, appeals two orders entered by the Circuit Court of Grant County. The first order, entered on July 9, 2019, granted default judgment in favor of respondents in an action involving a contract for the sale of property and petitioner's refusal to convey the property to respondents. The second order, entered November 6, 2019, denied petitioner's motion to modify the default judgment order.2 Respondents Kevin W. Mongold and Misty Lynn Mongold, by counsel Duke A. McDaniel, filed a response in support of the circuit court's order.

Upon consideration of the standards of review, the parties' briefs and oral arguments, the submitted appendix record, and the pertinent authorities, the Court finds that the court below erred in granting default judgment, and the case is remanded to the circuit court for further proceedings consistent with this decision. Because this case satisfies the "limited circumstances" requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure, we find that a memorandum decision is appropriate to resolve the issues presented.

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Respondents, who are petitioner's father and stepmother, filed a complaint on September 6, 2018, seeking specific performance of a "Contract of Sale" dated January 5, 2016, for a piece of property located in Grant County, West Virginia, which respondents sought to purchase from petitioner. Respondents alleged that petitioner had refused to execute and deliver a deed of conveyance for the property to them pursuant to the Contract of Sale. Respondents sought and obtained an order of publication, also dated September 6, 2018, from the Circuit Court of Grant County to effectuate service of their complaint on petitioner because he was not a resident of this State.

Petitioner, who was self-represented, sent a letter to the circuit court dated October 9, 2018, requesting an extension of "30-60 days to answer and provide evidence in my defense in this complaint against me." Petitioner stated that he had no knowledge of the civil action filed against him "until my Grandmother read it in the local newspaper, and brought it to my attention, only 2 weeks ago."3 By order entered November 16, 2018, the circuit court gave petitioner until November 23, 2018, to file an answer to respondents' complaint.

Petitioner, by letter dated December 17, 2018, which referenced "Answer to the Complaint Filed on 09.06.2018," inquired of the circuit court as to whether he had been granted an extension of time to answer the complaint. Petitioner indicated that he had "numerous failed attempts at reaching out to the court and its attendants for confirmation" of whether he had been granted an extension of time to file an answer. Petitioner stated that on November 21, 2018, he was informed over the phone by the court that his extension had been granted on November 16, 2018, and that the deadline for filing an answer was November 23. According to petitioner, "[o]nce again, we were not informed, so we could not give a timely response to the complaint." Petitioner then stated: "We are requesting a court appearance to provide evidence needed for my defense. This case has no merit. My property was never offered for sale." The circuit clerk entered this letter on the docket sheet as "ANSWER TO COMPLAINT FILED BY KEITH MONGOLD; CC: JUDGE COURRIER AND DUKE MCDANIEL[.]"

The docket sheet indicates that on January 8, 2019, petitioner was advised that he could notice a hearing in the case, but he "would be responsible for doing the notice of hearing and certificate of service." There was no activity in the case until June 13, 2019, when respondents filed a motion for default judgment with a supporting affidavit. There was no certificate of service affixed to the motion and there is no indication on either the docket sheet or the motion itself that it was served on petitioner.

By order entered July 9, 2019, the circuit court granted respondents a default judgment.4 The circuit court found that "no pleading had been filed by" petitioner, and further that "the

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Contract of Sale between the Plaintiffs and Defendant is a binding Contract of Sale" and respondents were "entitled to a deed of conveyance for the property described in the Contract of Sale." The circuit court appointed a special commissioner - respondents' attorney - to deliver a "good and sufficient special warranty deed" to respondents and to receive "monies, if any, after the discharge of liens and payment of costs[.]" The special commissioner was to report back to the Court before an order dismissing the case from the circuit court's docket would be entered.

By letter dated October 9, 2019, petitioner requested that the circuit court modify "and reopen a court order No 18-C-16, filed on July 19th 2019."5 Petitioner stated that he never received the default judgment order when it was entered because he had changed addresses in Connecticut; he then provided the court with his updated current address. Petitioner stated that he had received a letter on October 7, 2019, from the circuit court stating that default judgment had been entered in the case on June 13, 2019. Petitioner further stated that he resides outside the State and

was never given notice via mail, email, fax, [or] phone regarding the hearing, even after multiple conversations via phone with [respondent] Kevin Mongold. The Defendant Keith Mongold was not given notice to be able to defend his rights of ownership and to provide necessary documents to defend his case. On October 08, 2019[,] the court[']s clerk[']s office confirmed Keith Allen Mongold was never notified and there was no certificate of notification, and he was not given sufficient notice.6

(Footnote added). According to petitioner,

[o]n December 17, 2018 per the court[']s requirements, Keith Allen Mongold provided an answer to the original court order stating that the case held no merit and that the property was never for sale. The document was faxed and hand delivered to the courts [sic]. In the order filed July 09, 2019[,] the order states that "[t]he Court further noted that no pleading had been filed by the Defendant". I have included documents with this letter proving that Keith Allen

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Mongold, did in fact give a response to the courts on December 17, 2018.

Petitioner asserted in this letter that the Contract of Sale had been forged and that his signature could not have been notarized in West Virginia as he was in the State of Florida at the time.

On November...

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