Termnet Merchant Services, Inc. v. Jordan

• Decision Date: 30 June 2005
• Docket Number: No. 32652.,32652.
• Citation: 619 S.E.2d 209
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. TERMNET MERCHANT SERVICES, INC., a Foreign Corporation, Defendant Below, Petitioner v. The Honorable Philip B. JORDAN, Circuit Judge of Tucker County, West Virginia, and Yvonne Marson, Plaintiff Below, Respondents

619 S.E.2d 209

STATE of West Virginia ex rel. TERMNET MERCHANT SERVICES, INC., a Foreign Corporation, Defendant Below, Petitioner v. The Honorable Philip B. JORDAN, Circuit Judge of Tucker County, West Virginia, and Yvonne Marson, Plaintiff Below, Respondents

No. 32652.

Supreme Court of Appeals of West Virginia.

Submitted: June 8, 2005.

Decided June 30, 2005.

COPYRIGHT MATERIAL OMITTED

Robert J. Ridge, Chad A. Cicconi, Thorp Reed & Armstrong, L.L.P., Wheeling, for the Petitioner.

Frank P. Bush, Jr., Law Offices of Frank P. Bush, Jr. & Associates, Elkins, for the Respondents.

ALBRIGHT, Chief Justice:

By way of this petition, TermNet Merchant Services, Inc. (hereinafter referred to as "Petitioner") seeks a writ of prohibition and mandamus directed against the judge of the Circuit Court of Tucker County and Yvonne Marson (hereinafter referred to collectively as "Respondents").¹ The purposes for obtaining the writs is to secure relief from existing judgments for contempt sanctions against Petitioner for failing to respond to interrogatories in aid of execution and to prevent issuance of further judgments or imposition of additional sanctions unless Petitioner is afforded criminal procedural protections. After review of the record² and briefs of the parties, contemplation of the matters raised during oral presentations and full consideration of the applicable law, we find that the lower court lacked jurisdiction to rule on the motion to compel compliance with the discovery request, which regrettably but necessarily leads to the conclusion that the contempt orders and judgments at issue are void. Accordingly, a writ of prohibition, as moulded, is granted.

I. Factual and Procedural Background

Default judgment was awarded Ms. Marson by the Circuit Court of Tucker County on November 9, 2001, in an action brought by Ms. Marson³ against Petitioner for failing to process credit card sales transactions. Petitioner used various maneuvers to attack the judgment, all of which the court below determined were unfounded.⁴ Petitioner's appeal of the default judgment to this Court also proved unavailing.⁵ Thereafter, Petitioner has attempted to attack the West Virginia judgment in the state court of Georgia.⁶

The docket sheet maintained by the Tucker County Circuit Court reflects that Ms. Marson took several steps to enforce the judgment, including obtaining an abstract of judgment, a writ of execution and a suggestion. The docket sheet also reflects that a Certificate of Filing dated October 23, 2002, signed by Ms. Marson's counsel, was received in the circuit court clerk's office on October 24, 2002. The Certificate of Filing as submitted as an exhibit with Ms. Marson's response brief reads as follows:

Pursuant to the General Order pertaining to dispensing with filing of discovery matter in all civil actions in the Circuit Court of Tucker County, I, Frank P. Bush, Jr., counsel of record for Plaintiff, YVONNE MARSON, t/dba THIRD STREET TRADING COMPANY, did on the 23rd day of October, 2002, serve Defendant's counsel with "Plaintiff's Interrogatories in Aid of Execution", by depositing a true copy, in the United States mail, postage prepaid, to the office of Pat A. Nichols. The originals have been retained in our possession, as per the above-referenced order.

After this Court refused to hear the appeal of the default judgment, Petitioner filed a partial answer to Ms. Marson's interrogatories along with a motion for a protective order. Finding the answer inadequate, Ms. Marson's counsel filed a motion to compel an answer. After notice and hearing, the motion to compel was granted on April 11, 2003; Petitioner failed to comply with the order. By order dated June 24, 2003, a sanction of $250 a day was imposed by the court below for every day after July 1, 2003, that Petitioner refused to comply by responding fully to the interrogatories. Petitioner continued to refuse to so respond and the lower court incrementally increased the sanction to reach the $3,500 per day sanction now in place. Additionally, on May 13, 2004, the lower court reduced the contempt sanctions to a judgment in the amount of $230,000; on October 24, 2004, another judgment was entered against Petitioner for contempt sanctions totaling $367,000. Petitioner filed a motion pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure seeking relief from the judgment orders involving the sanctions. As Petitioner continued to resist compliance with the order of the court to respond to discovery, Ms. Marson filed a fifth motion for contempt in February 2005.

The lower court held a hearing on the Rule 60(b) and contempt motions on March 24, 2005. According to Petitioner, its due process right to a jury trial was asserted by its counsel at this hearing prior to the lower court announcing its decision. Before the lower court's order was issued, Petitioner sought relief in this court by the instant action. The court below subsequently issued an order dated April 6, 2005, regarding the March 24, 2005, hearing in which it is stated: "This Court has never before been put in a position of having to impose a civil contempt of such magnitude. But the Court's only alternative is to sit back and permit Termnet to make a mockery of this Court and this State." The lower court then proceeded to deny Petitioner's Rule 60(b) motion to set aside the accumulated contempt sanctions.

II. Standard of Review

In this proceeding, Petitioner seeks relief in mandamus and prohibition. "A writ of mandamus will not issue unless three elements coexist — (1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). Mandamus relief is not appropriate under the circumstances before us as there is a threshold jurisdictional question disclosed by the pleadings, arguments and record concerning the institution of the contempt proceedings which was not raised or demanded by Petitioner. In appropriate situations, this Court has chosen to treat petitions for extraordinary relief according to the nature of the relief sought rather than the type of writ pursued. See e.g. State ex rel. Conley v. Hill, 199 W.Va. 686, 687 n. 1, 487 S.E.2d 344, 345 n. 1 (1997) ("Although this case was brought and granted as a petition for mandamus, we choose to treat this matter as a writ of prohibition. See State ex rel. Ranger Fuel Corp. v. Lilly, 165 W.Va. 98, 100, 267 S.E.2d 435, 436 (1980); see also Carr v. Lambert, 179 W.Va. 277, 278[n. 1], 367 S.E.2d 225, 226 n. 1 (1988)."); State ex rel. Mobil Corp. v. Gaughan, 211 W.Va. 106, 110, 563 S.E.2d 419, 423 (2002); State ex rel. Riley v. Rudloff, 212 W.Va. 767, 770 n. 1, 575 S.E.2d 377, 380 n. 1 (2002). Upon consideration of the issues raised by this case, we find that the more appropriate relief lies in a writ of "prohibition ... [as its purpose is] to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers...." Syl. Pt. 1, in part, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953); see also W.Va.Code § 53-1-1 (1923) (Repl. Vol. 2000). As jurisdictional issues are questions of law, our review is de novo. Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

III. Discussion

Petitioner's reason for requesting our review is to obtain relief from the imposition of contempt orders, reduced to money judgments, for its refusal to answer interrogatories in aid of execution of the default judgment awarded in an underlying proceeding. As part of this request, Petitioner has urged we delineate the magnitude of contempt sanctions which warrant heightened due process protections afforded criminal prosecutions. However, we will not reach this subject as we find the dispositive issue in this case is whether the lower court was acting within its legitimate powers when the contempt orders were entered. Although the parties did not challenge the authority of the court below to act, "[l]ack of jurisdiction of the subject matter may be raised in any appropriate manner ... and at any time during the pendency of the suit or action." McKinley v. Queen, 125 W.Va. 619, 625, 25 S.E.2d 763, 766 (1943) (citation omitted). As to the appropriate manner by which the lack of subject matter jurisdiction is raised, we have said that "[l]ack of jurisdiction may be raised for the first time in this court, when it appears on the face of the bill and proceedings, and it may be taken notice of by this court on its own motion." Syl. Pt. 3, Charleston Apartments Corp. v. Appalachian Elec. Power Co., 118 W.Va. 694, 192 S.E. 294 (1937); see also Syl. Pt. 2, In re Boggs' Estate, 135 W.Va. 288, 63 S.E.2d 497 (1951) ("This Court, on its own motion, will take notice of lack of jurisdiction at any time or at any stage of the litigation pending therein."); Syl. Pt. 1, Dawson v. Dawson, 123 W.Va. 380, 15 S.E.2d 156 (1941). The urgency of addressing problems regarding subject-matter jurisdiction cannot be understated because any decree made by a court lacking jurisdiction is void. Syl. Pt. 5, State ex rel. Hammond v. Worrell, 144 W.Va. 83, 106 S.E.2d 521 (1958), rev'd on other grounds, Patterson v. Patterson, 167 W.Va. 1, 277 S.E.2d 709 (1981).

It is apparent from the record and representations during oral arguments that the requisite procedures for filing interrogatories in aid of execution were not followed in this case. With minor rule modifications imposed by this Court, enforcement of judgment actions are subject to legislatively prescribed procedures. Rule 69 of the West Virginia Rules of Civil Procedure, entitled "Executions and other final process; proceedings in aid thereof," expressly provides in relevant part:

(a) ...