Leslie Equipment v. Wood Resources, L.L.C., No. 34712.

CourtSupreme Court of West Virginia
Writing for the CourtMcHugh
Citation687 S.E.2d 109
Decision Date30 October 2009
Docket NumberNo. 34712.
PartiesLESLIE EQUIPMENT COMPANY, A West Virginia Corporation, Plaintiff Below, Appellee v. WOOD RESOURCES COMPANY, L.L.C., Christopher Todd Zach, Individually and d/b/a Wood Resources Company, L.L.C., Ramona C. Goeke, Individually and d/b/a Wood Resources Company, L.L.C., and Wendell L. Koprek, Individually and d/b/a Wood Resources Company, L.L.C., Defendants Below, Christopher Todd Zach and Ramona C. Goeke, Appellants.
687 S.E.2d 109
LESLIE EQUIPMENT COMPANY, A West Virginia Corporation, Plaintiff Below, Appellee
v.
WOOD RESOURCES COMPANY, L.L.C., Christopher Todd Zach, Individually and d/b/a Wood Resources Company, L.L.C., Ramona C. Goeke, Individually and d/b/a Wood Resources Company, L.L.C., and Wendell L. Koprek, Individually and d/b/a Wood Resources Company, L.L.C., Defendants Below,
Christopher Todd Zach and Ramona C. Goeke, Appellants.
No. 34712.
Supreme Court of Appeals of West Virginia.
Submitted September 9, 2009.
Decided October 30, 2009.

[687 S.E.2d 110]

Syllabus by the Court

1. "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).

2. "The Due Process Clause of the Fourteenth Amendment to the United States Constitution operates to limit the jurisdiction of a state court to enter a judgment affecting the rights or interests of a nonresident defendant. This due process limitation requires a state court to have personal jurisdiction over the nonresident defendant." Syl. Pt. 1, Pries v. Watt, 186 W.Va. 49, 410 S.E.2d 285 (1991).

3. Under West Virginia Code § 56-3-33 (Supp.2009), the acceptance by the Secretary of State of service of process as the attorney-in-fact for a nonresident defendant who has committed one of the enumerated statutory acts is the legal equivalent of personally serving that nonresident within this state.

4. In contrast to the legislative schema of West Virginia Code § 56-3-33 (Supp. 2009), Rule 4 of the West Virginia Rules of Civil Procedure does not provide that constructive service on a nonresident defendant has the same force of law as personal service effected in state. As a result, in personam jurisdiction does not arise by operation of law when a nonresident defendant is constructively served with process pursuant to the provisions of Rule 4 of the West Virginia Rules of Civil Procedure.

5. A movant seeking relief under Rule 60(b)(4) of the West Virginia Rules of Civil Procedure must show that the judgement sought to be vacated is void and that the motion to vacate the judgment was filed within a reasonable period of time.

P. Todd Phillips, Morgantown, WV, for Appellants.

David H. Wilmoth, Elkins, WV, for Appellee.

McHUGH, Justice:


Appellants Christopher Todd Zach and Ramona C. Goeke appeal from the May 27, 2008, order of the Circuit Court of Wirt County denying their motion to set aside a default judgment previously entered against

687 S.E.2d 111

them.1 As grounds for both the motion to set aside and the appeal, Appellants argue that the default judgment is a void order based on the absence of in personam jurisdiction. Appellee Leslie Equipment Company contends that the trial court did have personal jurisdiction over the nonresident Appellants based on the constructive service provisions of the West Virginia Rules of Civil Procedure.2 After a careful review of the applicable law and rules governing this issue, we conclude that the trial court committed error in refusing to set aside the default judgment for lack of in personam jurisdiction.

I. Factual and Procedural Background

On October 18, 2007, Leslie Equipment filed a complaint in the Circuit Court of Wirt County against Wood Resources Company, L.L.C., and Appellants,3 as officers of the company. Through the lawsuit, Leslie Equipment sought to recover an alleged debt arising from Wood Resources' purchase of goods and services on credit.4 To serve process on Appellants, Leslie Equipment looked to Rule 4(e)(2) of the West Virginia Rules of Civil Procedure, which authorizes the use of constructive service on nonresident defendants by means of certified mail5 in certain instances.

When Appellants did not file a responsive pleading following notification of the lawsuit, Leslie Equipment moved for a default judgment on or about January 25, 2008. The trial court granted Leslie Equipment's motion for a default judgment by order entered on February 1, 2008, finding Appellants jointly and severally liable for the amount of $22, 459.70.6

When he attempted to schedule a hearing on a motion to dismiss the complaint for lack of in personam jurisdiction,7 Appellants' counsel discovered that a default judgment had been entered against his clients. After obtaining a copy of the default judgment by means of facsimile, Appellants' counsel filed a motion to set aside the default judgment and dismiss the action on grounds that the judgment was void for lack of personal jurisdiction.8 Following a hearing on this motion on May 12, 2008, the trial court denied the relief sought by Appellants. Through its order of May 27, 2008, the trial court ruled that: (1) Appellants had actual notice of the pendency of the legal action that resulted in the entry of a default judgment against them; (2) the manner in which service of process was effected under Rule 4(e)(2) is similarly authorized by West Virginia Code § 56-3-33 (2005); (3) the rules of civil procedure control where there is a conflict with statutory law; and (4) Appellants have failed to show good cause or excusable neglect entitling them to set aside the default judgment. Through this appeal, Appellants seek to reverse the trial court's decision that the default judgment entered against them is a valid and enforceable judgment.

II. Standard of Review

We review a decision by a trial court to award a default judgment pursuant to an abuse of discretion standard. See Syl. Pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974). Where, however, "the issue on appeal from the circuit court is clearly a question of law ...", we apply a de novo standard of review. Syl. Pt. 1, in part,

687 S.E.2d 112

Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). With these standards in mind, we proceed to consider whether the trial court committed error in refusing to vacate the default judgment at issue.

III. Discussion
A. In Personam Jurisdiction

The validity of any court ruling is dependent on two jurisdictional predicates: "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). With regard to the need for personal jurisdiction over a nonresident defendant we have recognized:

The Due Process Clause of the Fourteenth Amendment to the United States Constitution operates to limit the jurisdiction of a state court to enter a judgment affecting the rights or interests of a nonresident defendant. This due process limitation requires a state court to have personal jurisdiction over the nonresident defendant.

Syl. Pt. 1, Pries v. Watt, 186 W.Va. 49, 410 S.E.2d 285 (1991). Consequently, a determination that the trial court lacked in personam jurisdiction will render the default judgment at issue void and unenforceable. See Syl. Pt. 1, Schweppes U.S.A. Ltd. v. Kiger, 158 W.Va. 794, 214 S.E.2d 867 (1975) (holding that order rendered without personal and subject matter jurisdiction renders decree "utterly void"); see also Smith v. Smith, 140 W.Va. 298, 302-03, 83 S.E.2d 923, 925-26 (1954) (recognizing necessity of personal jurisdiction for judgments founded upon personal liability).

Appellants contend that the manner in which Leslie Equipment sought to effect service of process on them deprived the trial court of the necessary personal jurisdiction to enter an enforceable default judgment. Relying solely on the provisions of Rule 4 of the West Virginia Rules of Civil Procedure, Leslie Equipment had the clerk of the circuit court transmit the complaint and summons to the nonresident Appellants by means of certified mail. The pertinent provisions of Rule 4 provide for constructive service by means of "certified mail, return receipt requested, and delivery restricted to the addressee" "when plaintiff knows the residence of a nonresident defendant or the principal office of a nonresident defendant foreign corporation or business trust for which no officer, director, trustee, agent, or appointed or statutory agent or attorney in fact is found in the State. ..." W.Va.Code §§ 4(d)(1)(D); 4(e)(2).

While Rule 4 specifies the manner in which constructive service may be effected upon a nonresident defendant,9 Appellants assert that the rule does not address the issue of personal jurisdiction. In marked contrast to Rule 4, Appellants observe that West Virginia Code § 56-3-33 — our long-arm statute — expressly contemplates and mandates that when a nonresident or his duly authorized agent commits one or more of seven delineated acts10 the Secretary of

687 S.E.2d 113

State, by operation of law, becomes the nonresident's attorney-in-fact. And, when lawful service is effected on the Secretary of State in connection with an action arising from the nonresident's commission of an act specified in West Virginia Code § 56-3-33, that service of process "shall be of the same legal force and validity as though such nonresident were personally served with a summons and complaint within this state." Id.

In Lozinski v. Lozinski, 185 W.Va. 558, 408 S.E.2d 310 (1991), we recognized how the adoption of our long-arm statute was a legislative device by which the trial courts of this state could obtain personal jurisdiction over nonresident defendants within the bounds of due process. Accord Harman v. Pauley, 522 F.Supp. 1130, 1135 (S.D.W.Va.1981). After discussing how "West Virginia's extraterritorial `reach' of jurisdiction over nonresidents is obtained through what are commonly-referred to as `single-acts,'"11 we determined that the failure to pay child support was a qualifying tortious act...

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15 practice notes
  • Beane v. Dailey, No. 34630.
    • United States
    • Supreme Court of West Virginia
    • April 1, 2010
    ...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 Ka......
  • Amoruso v. Commerce and Industry Insurance Company, No. 17-1106
    • United States
    • Supreme Court of West Virginia
    • March 27, 2019
    ...to respond would result in a default judgment against him.11 Syl. Pt. 1, Leslie Equip. Co. v. Wood Res. Co., L.L.C. , 224 W. Va. 530, 687 S.E.2d 109 (2009) (quoting Syl. Pt. 3, State ex rel. Smith v. Bosworth , 145 W. Va. 753, 117 S.E.2d 610 (1960) ).12 See Syl. Pt. 4, Blankenship v. Estep ......
  • State ex rel. St. Clair v. Howard, No. 20-0442
    • United States
    • Supreme Court of West Virginia
    • March 26, 2021
    ...vacate the judgment was filed within a reasonable period of time." Syl. Pt. 5, Leslie Equip. Co. v. Wood Res. Co., L.L.C., 224 W.Va. 530, 687 S.E.2d 109 (2009) ; see also Tudor's Biscuit World of Am. v. Critchley , 229 W. Va. 396, 398, 729 S.E.2d 231, 233 (2012). Our precedents counsel that......
  • Tudor's Biscuit World of Am. v. Critchley, No. 11–0543.
    • United States
    • Supreme Court of West Virginia
    • June 13, 2012
    ...judgment was filed within a reasonable period of time.” Syl. Pt. 5, Leslie Equipment Co. v. Wood Resources, Co., L.L.C., 224 W.Va. 530, 687 S.E.2d 109 (2009). 4. “In addressing a motion to set aside a default judgment, ‘good cause’ requires not only considering the factors set out in Syllab......
  • Request a trial to view additional results
15 cases
  • Beane v. Dailey, No. 34630.
    • United States
    • Supreme Court of West Virginia
    • April 1, 2010
    ...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 Ka......
  • Amoruso v. Commerce and Industry Insurance Company, No. 17-1106
    • United States
    • Supreme Court of West Virginia
    • March 27, 2019
    ...to respond would result in a default judgment against him.11 Syl. Pt. 1, Leslie Equip. Co. v. Wood Res. Co., L.L.C. , 224 W. Va. 530, 687 S.E.2d 109 (2009) (quoting Syl. Pt. 3, State ex rel. Smith v. Bosworth , 145 W. Va. 753, 117 S.E.2d 610 (1960) ).12 See Syl. Pt. 4, Blankenship v. Estep ......
  • State ex rel. St. Clair v. Howard, No. 20-0442
    • United States
    • Supreme Court of West Virginia
    • March 26, 2021
    ...vacate the judgment was filed within a reasonable period of time." Syl. Pt. 5, Leslie Equip. Co. v. Wood Res. Co., L.L.C., 224 W.Va. 530, 687 S.E.2d 109 (2009) ; see also Tudor's Biscuit World of Am. v. Critchley , 229 W. Va. 396, 398, 729 S.E.2d 231, 233 (2012). Our precedents counsel that......
  • Tudor's Biscuit World of Am. v. Critchley, No. 11–0543.
    • United States
    • Supreme Court of West Virginia
    • June 13, 2012
    ...judgment was filed within a reasonable period of time.” Syl. Pt. 5, Leslie Equipment Co. v. Wood Resources, Co., L.L.C., 224 W.Va. 530, 687 S.E.2d 109 (2009). 4. “In addressing a motion to set aside a default judgment, ‘good cause’ requires not only considering the factors set out in Syllab......
  • Request a trial to view additional results

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