Intercity Realty Co. v. Gibson

Decision Date07 July 1970
Docket NumberNo. 12863,12863
Citation175 S.E.2d 452,154 W.Va. 369
CourtWest Virginia Supreme Court
PartiesINTERCITY REALTY COMPANY, a West Virginia Corporation v. Agnes GIBSON, a/k/a Mrs. William Gibson and Mrs. W. Gibson.

Syllabus by the Court

1. A default judgment obtained in accordance with the provisions of Rule 55(b), West Virginia Rules of Civil Procedure, is a valid and enforceable judgment and a motion to set aside such judgment will not be granted unless the movant shows good cause therefor as prescribed in Rule 60(b) of the aforesaid Rules of Civil Procedure.

2. 'The finding of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding.' Point 6, Syllabus, Daugherty v. Ellis, 142 W.Va. 340, 97 S.E.2d 33.

3. 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.

Steptoe & Johnson, Edward W. Eardley, Carl F. Stucky, Jr., Poffenbarger & Bowles, Martin C. Bowles, Charleston, for appellant.

Campbell, Love, Woodroe & Kizer, George W. S. Grove, Jr., Charleston, for appellee.

CAPLAN, Judge:

In this civil action instituted in the Circuit Court of Kanawha County, the plaintiff, Intercity Realty Company, a corporation, seeks to recover a sum of money alleged to be due from the defendant, Agnes Gibson, for certain work performed by it upon her dwelling house. In the circumstances hereinafter described the plaintiff obtained a default judgment which the defendant sought to set aside. Upon the refusal of the court to set aside said judgment the defendant prosecutes this appeal.

On October 31, 1963 the plaintiff entered into a written contract with the defendant, under the terms of which the plaintiff agreed to construct an addition to and to otherwise renovate a dwelling house belonging to the defendant. For this work the defendant agreed to pay to the plaintiff the sum of $6,750.00. Upon partial completion of the renovation and construction, the defendant paid $3,000.00, after which a dispute arose between the parties as to the manner in which the work was being performed. The defendant, being dissatisfied, refused to pay the balance alleged by the plaintiff to be due it and this action was instituted.

It appears from the record that after the disagreement arose between the parties, but prior to the institution of this action, the plaintiff employed an attorney, Mario J. Palumbo, to represent it in this dispute and the defendant retained Homer W. Hanna, Jr. to represent her. These attorneys engaged in prolonged negotiations in an attempt to settle the dispute between the parties but were unsuccessful. Consequently, on February 26, 1966 the plaintiff instituted this action, the summons and complaint being served on the defendant on March 4, 1966. The failure of the defendant to file an answer to the complaint within twenty days as required by Rule 12(a) of the West Virginia Rules of Civil Procedure (R.C.P.) resulted in a default judgment for the plaintiff. Involved here is the propriety of the action of the trial court in refusing to set aside that judgment.

The trial court found, based upon the testimony of Mr. Hanna, Mr. Palumbo and their respective secretaries, that on March 23, 1966 Mr. Hanna contacted Mr. Palumbo by telephone and requested additional time in which to file an answer to the complaint. He gave as a reason for his request the fact that he was engaged in appealing a case from the Public Service Commission to the Supreme Court of Appeals. Mr. Palumbo replied that by reason of the long period of time that this case had been pending he could not in good conscience grant any extension of time without contacting his client. This he agreed to do. Mr. Palumbo testified that he talked to his client and that the request for an extension was refused.

The evidence is somewhat conflicting at this point but Mr. Palumbo testified that after his client had refused to grant an extension he tried unsuccessfully to contact Mr. Hanna. Finally, on March 28, 1966 he did make contact and told Mr. Hanna of his client's refusal. He further said, however, that because he may have lulled Mr. Hanna into inaction by his promise to intercede with the plaintiff, he would agree, contrary to the direction of his client, to an extension of time in which to file his answer. Upon being asked how much additional time he needed, Mr. Hanna replied that he could have the answer ready on March 31, 1966. Mr. Palumbo then said that it would be satisfactory if the answer were placed in his hands by March 31. There was nothing in writing to substantiate this agreement but it is not disputed.

On April 1, 1966 Mr. Palumbo, not having received the answer, appeared before the Circuit Court of Kanawha County at the 9:30 A.M. motion hour and obtained a default judgment for his client against the defendant. Mr. Hanna, admitting that he did not file the answer on March 31, testified that on April 1, prior to the noon hour, his secretary, at his direction, personally delivered the answer and counterclaim of the defendant to Mr. Palumbo's office. When she was told that Mr. Palumbo was not there she left the papers with a secretary in the front office. This was substantially supported by the testimony of Mr. Hanna's secretary, although she did not know the date on which she delivered such papers. Mr. Palumbo testified and produced an office time book to support his testimony that he was in his office on March 31 from 8:00 A.M. to 12:00 noon and on April 1, 1966 from 8:30 A.M. to 11:00 A.M. and from 1:00 P.M. to 3:30 P.M. He knew of no papers delivered to his office from Mr. Hanna during the times that he was there.

Mr. Hanna testified that he could not get his answer prepared on March 31 and attempted to contact Mr. Palumbo, but was unsuccessful. He said that he did not learn of the default judgment until the following Monday, April 4, 1966, when he filed the subject answer and counter-claim in the office of the clerk of the circuit court. Thereafter, on April 5, 1966, Mr. Hanna, on behalf of the defendant, filed a motion to set aside the default judgment. Therein he alleged that the time to answer had not expired; that if such time had expired, he should be allowed to answer under Rule 60(b)(1) and (6), R.C.P.; that he had a meritorious defense to the claim asserted by the plaintiff; and that setting aside the judgment by default would in no way prejudice the rights of the plaintiff. The plaintiff, contending that the motion did not state with particularity the grounds therefor, as required by Rule 7(b)(1), R.C.P., objected to the granting of said motion.

After the motion to set aside the judgment was filed counsel for the parties again entered into negotiations in an attempt to settle the dispute. After the passing of more than a year it became evident that the parties would not reach an agreement and counsel decided to proceed with a hearing on the motion. On June 31, 1967 the defendant offered for filing an amended and supplemental motion to set aside the judgment. The propriety of filing such amended motion was questioned and it was lodged but not filed in the clerk's office. The court decided that the motion to set aside could not be altered by amendment but stated that the merits of the motion would not be decided without a hearing.

Finally, on July 22, 1968, at the request of Mr. George W. S. Grove, Jr., then and now counsel for the plaintiff, a hearing was held, whereat, as aforesaid, both attorneys and their secretaries testified. Subsequently, the court made a finding which was embodied in the following language:

'Weighing all of the equities in this case, considering the fact that the work claimed to have been done by the plaintiff was done in 1963 and 1964, that the case pended on negotiations for quite a period of time before suit was instituted, that counsel for the defendant had notice in plenty of time to file an answer or ask for an extension of time, that in fact counsel for the defendant did obtain one extension from counsel for plaintiff although this was against the express orders of the plaintiff, and in view of the fact that the testimony of Mr. Palumbo is better documented than is the testimony of Mr. Hanna, I am of opinion that I must overrule all grounds of the motion to set aside the default, and permit the judgment to stand.'

The factual situation as set out in this opinion is in accordance with the findings of the trial court, based on testimony taken before it, much of which was conflicting:

The defendant contends that the court should have permitted her to file her amended motion to set aside the default judgment. The amended motion, which is included in the record, purported to set forth reasons why the judgment should be set aside. Inasmuch as the court heard this case on the merits of the motion and amended motion and considered all of the reasons set out therein, its refusal to permit the amended motion to be filed is immaterial.

It is further contended by the defendant that she should have been served with written notice of the application for default judgment at least three days prior to the hearing on such application, in accordance with the provisions of Rule 55(b), R.C.P. She takes the position that the requirements of Rule 55(b) were satisfied by the fact that her attorney had been negotiating with the plaintiff's attorney. That, she says, constitutes the appearance required by Rule 55(b). That rule, where pertinent, provides: 'If the party against whom judgment of default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the...

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