State Ex Rel. Farber v. Mazzone, No. 31277.

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM.
Citation213 W.Va. 661,584 S.E.2d 517
PartiesSTATE of West Virginia EX REL. Michael C. FARBER, Petitioner, v. The Honorable James P. MAZZONE, Judge of the Circuit Court of Brooke County, and John R. Bailey, Respondent
Decision Date26 June 2003
Docket NumberNo. 31277.

584 S.E.2d 517
213 W.Va.
661

STATE of West Virginia EX REL. Michael C. FARBER, Petitioner,
v.
The Honorable James P. MAZZONE, Judge of the Circuit Court of Brooke County, and John R. Bailey, Respondent

No. 31277.

Supreme Court of Appeals of West Virginia.

Submitted June 10, 2003.

Decided June 26, 2003.


584 S.E.2d 518
Michael C. Farber, Pro Se

David A. Neely, Goldberg, Kamin & Garvin, Pittsburgh, PA, Attorney for the Respondent, John R. Bailey.

584 S.E.2d 519
PER CURIAM

Petitioner Michael C. Farber has requested this Court to issue of writ of prohibition against the Honorable James P. Mazzone of the Circuit Court of Brooke County preventing the lower court from asserting jurisdiction over him in the underlying professional liability action, due to defective service of process, and to quash a subpoena duces tecum requiring Mr. Farber to produce records in the underlying civil action. Having thoroughly reviewed the arguments of the parties, we grant the requested writ of prohibition.

I. Factual and Procedural History

On July 11, 1997, Mr. John R. Bailey filed a complaint against Mr. Farber for legal malpractice in a domestic relations matter.1 On July 15, 1997, Mr. Bailey sought service of process by certified mail with "restricted delivery."2 The return receipt indicated that the complaint was received by Ms. Kathy Winters, a temporary secretary in Mr. Farber's law office. On August 19, 1997, Mr. Bailey filed a Motion for Default Judgment based upon Mr. Farber's failure to respond to the complaint, explaining that Mr. Farber had been served on July 15, 1997, and had not responded.

On November 3, 1997, Mr. Farber filed a response to the Motion for Default Judgment, contending that service of process had been defective and that the lower court consequently lacked jurisdiction over him. On January 27, 1998, the lower court, Judge Fred Risovich presiding, entered default judgment against Mr. Farber. Mr. Farber did not file an appeal to that default judgment. During a February 24, 1998, damages hearing, Mr. Farber filed a Motion to Set Aside Judgment Order, pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure, based upon his allegation of ineffective service of process. Mr. Farber contended that United States Postal Service rules provide that mail designated as "restricted delivery" should be delivered only to the addressee or the person authorized in writing to receive the mail. In the present situation, Mr. Farber had not authorized any other person to receive restricted delivery mail on Mr. Farber's behalf. The lower court refused to set aside the default judgment, and Mr. Farber did not appeal that decision. The February 24, 1998, hearing proceeded on the issue of damages, with Mr. Bailey testifying in his own behalf.

By letter dated September 1, 1998, Mr. Farber informed the lower court that he refused to participate in further hearings relative to the civil action and opted to "advance my defense on appeal before the Supreme Court of Appeals." However, no appeal was ever filed. An additional hearing on the issue of damages was conducted by the lower court on September 1, 1998. Although properly notified, Mr. Farber did not attend that hearing. Mr. Bailey presented expert testimony regarding his damages and also requested punitive damages. The lower court denied the request for punitive damages, pending receipt of financial information requested from Mr. Farber.

On September 23, 1998, Mr. Bailey served Mr. Farber with interrogatories and a request for production of documents to obtain the necessary financial information. Having received no response, Mr. Bailey filed an October 29, 1998, motion to compel Mr. Farber to respond to the requests. On November 24, 1998, the lower court entered an order compelling Mr. Farber to respond to the discovery requests within ten days. Mr. Farber did not respond.

On February 10, 1999, Mr. Bailey served Mr. Farber with a subpoena duces tecum

584 S.E.2d 520
requiring Mr. Farber to bring all previously requested financial information to a hearing scheduled for April 9, 1999. When Mr. Farber did not appear for that hearing, the lower court issued a bench warrant for Mr. Farber's arrest, upon the request of counsel for Mr. Bailey. On December 10, 1999, Mr. Farber was taken into custody and delivered to the Central Regional Jail in Flatwoods, West Virginia. Mr. Farber immediately contacted a judge for the Circuit Court of Braxton County, who ordered that Mr. Farber be taken to the Braxton County Circuit Court for a bond hearing. Mr. Farber was thereafter released on personal recognizance

In July 2002, this civil action was scheduled for dismissal for failure to prosecute under Rule 41(b) of the West Virginia Rules of Civil Procedure. The matter was thereafter set for hearing on a rule to show cause why petitioner had not yet complied with prior orders regarding the subpoena. On November 7, 2002, Mr. Farber failed to appear for a scheduled hearing on punitive damages. On December 2, 2002, the lower court, Judge Mazzone presiding, entered an order with respect to the November 7, 2002, hearing and bifurcated this matter as to compensatory and punitive damages. The court awarded Mr. Bailey $71,885.003 in compensatory damages and ordered Mr. Farber to provide Mr. Bailey with the financial information relative to punitive damages originally requested through discovery in 1998.

Prior to a scheduled February 10, 2003, hearing on a rule to show cause why Mr. Farber had failed to comply with court orders, Mr. Farber communicated with the lower court by letter, explaining that he would be unable to attend the hearing due to the serious illness of a friend. Mr. Farber requested an additional ten days within which to produce the requested documents. Based upon those representations, the lower court scheduled the matter for hearing on April 1, 2003.

On March 31, 2003, Mr. Farber filed this petition for writ of prohibition to preclude further action in this matter. Mr. Farber contends that the mandates of Rule 4 regarding valid service of process are to be strictly construed to assure proper notice and opportunity to respond to civil complaints. He further asserts that Mr. Bailey's failure to comply with Rule 4 rendered the service of process invalid and that the lower court did not have jurisdiction to enter the default judgment against him. Likewise, Mr. Farber maintains that the lower court lacks jurisdiction to enforce the subpoena duces tecum against him. Mr. Farber requests this Court to (a) prohibit the lower court from asserting jurisdiction in this matter; (b) quash the subpoena and dismiss the complaint.

In response to the requested writ of prohibition, the lower court contends that Mr. Farber is the victim of his own failure to pursue an appeal of the default judgment. Mr. Bailey likewise contends that valid service of process was obtained and that a default judgment was entered in January 1998. Mr. Bailey further maintains that because the default judgment was never appealed, it cannot be challenged in this writ of prohibition.

II. Standard of Review

The standard of review applicable to a writ of prohibition has been explained as follows:

"`A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code, 53-1-1.' Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977)." Syl. pt. 2, State ex rel. Kees v. Sanders, 192 W.Va. 602, 453 S.E.2d...

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13 practice notes
  • State ex rel. Ford Motro Co. v. McGraw, No. 15–1149.
    • United States
    • Supreme Court of West Virginia
    • May 18, 2016
    ...court (a) has [no] jurisdiction or (b) has jurisdiction but exceeds its legitimate powers....' ” State ex rel. Farber v. Mazzone, 213 W.Va. 661, 664, 584 S.E.2d 517, 520 (2003) (quoting State ex rel. Valley Distrib., Inc. v. Oakley, 153 W.Va. 94, 99, 168 S.E.2d 532, 535 (1969) ). As this Co......
  • Beane v. Dailey, No. 34630.
    • United States
    • Supreme Court of West Virginia
    • April 1, 2010
    ...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......
  • State ex rel. Third-Party Defendant Health Plans v. Nines, No. 20-0296
    • United States
    • Supreme Court of West Virginia
    • November 25, 2020
    ...inferior court (a) has [no] jurisdiction or (b) has jurisdiction but exceeds its legitimate powers[.]" State ex rel. Farber v. Mazzone , 213 W. Va. 661, 664, 584 S.E.2d 517, 520 (2003) (Internal citation and quotation omitted). Further, "[w]hen a court is attempting to proceed in a cause wi......
  • Tudor's Biscuit World of Am. v. Critchley, No. 11–0543.
    • United States
    • Supreme Court of West Virginia
    • June 13, 2012
    ...overruled on other grounds by Stalnaker v. Roberts, 168 W.Va. 593, 287 S.E.2d 166 (1981).’Syl. Pt. 5, State ex rel. Farber v. Mazzone, 213 W.Va. 661, 584 S.E.2d 517 (2003)(emphasis added). Tudor's argues that the timeliness requirement in Rule 60(b) and this Court's precedent applying it is......
  • Request a trial to view additional results
13 cases
  • State ex rel. Ford Motro Co. v. McGraw, No. 15–1149.
    • United States
    • Supreme Court of West Virginia
    • May 18, 2016
    ...court (a) has [no] jurisdiction or (b) has jurisdiction but exceeds its legitimate powers....' ” State ex rel. Farber v. Mazzone, 213 W.Va. 661, 664, 584 S.E.2d 517, 520 (2003) (quoting State ex rel. Valley Distrib., Inc. v. Oakley, 153 W.Va. 94, 99, 168 S.E.2d 532, 535 (1969) ). As this Co......
  • Beane v. Dailey, No. 34630.
    • United States
    • Supreme Court of West Virginia
    • April 1, 2010
    ...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.......
  • State ex rel. Third-Party Defendant Health Plans v. Nines, No. 20-0296
    • United States
    • Supreme Court of West Virginia
    • November 25, 2020
    ...court (a) has [no] jurisdiction or (b) has jurisdiction but exceeds its legitimate powers[.]" State ex rel. Farber v. Mazzone , 213 W. Va. 661, 664, 584 S.E.2d 517, 520 (2003) (Internal citation and quotation omitted). Further, "[w]hen a court is attempting to proceed in a cause w......
  • Tudor's Biscuit World of Am. v. Critchley, No. 11–0543.
    • United States
    • Supreme Court of West Virginia
    • June 13, 2012
    ...overruled on other grounds by Stalnaker v. Roberts, 168 W.Va. 593, 287 S.E.2d 166 (1981).’Syl. Pt. 5, State ex rel. Farber v. Mazzone, 213 W.Va. 661, 584 S.E.2d 517 (2003)(emphasis added). Tudor's argues that the timeliness requirement in Rule 60(b) and this Court's precedent applying it is......
  • Request a trial to view additional results

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