James Wilson Douglas, L.C., by counsel Jared S. Frame,
appeals the Circuit Court of Braxton County's November
23, 2016, order denying petitioner's motions for a stay
of judgment and reconsideration. Respondent Jennifer S.
Morton, by counsel Gregory H. Schillace, filed a response in
support of the circuit court's order and a supplemental
appendix. On appeal, petitioner argues that the circuit court
abused its discretion in setting aside default judgment
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
this Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
2015, petitioner, an attorney, entered into a contract with
respondent to represent her in a divorce action. Petitioner
withdrew from representing respondent sometime in 2015. On
April 9, 2015, petitioner filed a complaint for unpaid
attorney's fees in the Circuit Court of Braxton County.
The summons and complaint were returned to petitioner for
personal service at the time of the complaint's filing,
and the return of service indicated that respondent was
personally served. Following the filing of the complaint, on
May 8, 2015, petitioner filed a motion for default judgment
claiming that respondent failed to appear and/or file an
answer. Petitioner was awarded default judgment on or about
May 14, 2015.
of 2015, respondent filed a motion to set aside the default
judgment pursuant to Rules 55 and 60 of the West Virginia
Rules of Civil Procedure. In support of her motion, respondent
claimed that she had not been served with the summons and
complaint and that her first notice of the complaint was her
receipt of the order granting default judgment against her.
In February of 2016, the circuit court held a hearing on the
motion to set aside the default judgment. At the hearing, the
circuit court set aside the default judgment in favor of
holding a trial on the merits. Matz v. Corna and Co.,
Inc. 206 W.Va. 40, 521 S.E.2d 235 (1999) (holding that
"[a]lthough courts should not set aside default
judgments or dismissals without good cause, it is the policy
of the law to favor the trial of all cases on their
merits."). That same day, petitioner filed a motion for
reconsideration and a motion to stay the judgment. Respondent
filed a response to petitioner's motions and a
counterclaim, in which she asserted that petitioner failed to
fulfill all "promises and obligations" of the
March of 2016, the circuit court held a hearing on
petitioner's motions and again set aside the rulings made
at the February 16, 2016, hearing and scheduled the matter
for a "full evidentiary hearing." The circuit court
held that evidentiary hearing in March of 2016 and heard the
testimony of petitioner, respondent, and the process server.
Following the presentation of evidence, the circuit court
reaffirmed its prior decision to set aside the default
judgment. Petitioner then filed a second motion for a stay of
judgment and a second motion for reconsideration. Respondent
filed a response to petitioner's motions. On November 23,
2016, the circuit court entered an order denying those
motions. It is from this order that petitioner appeals.
Court has previously established the following standard of
review: "[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
discretion." Lexon Ins. Co. v. Cnty Council of
Berkeley Co., 235 W.Va. 47, 50, 770 S.E.2d 547, 550
(2015) (quoting Syl. pt. 1, Drumheller v. Fillinger,
230 W.Va. 26, 736 S.E.2d 26, 27 (2012). In other words,
"[a]ppellate review of the propriety of a default
judgment focuses on the issue of whether the trial court
abused its discretion in entering the default judgment."
Lexon at 50, 770 S.E.2d at 550)(quoting Syl. pt. 3,
Hinerman v. Levin, 172 W.Va. 777, 310 S.E.2d 843
(1983). Likewise, "[a] motion to vacate a judgment made
pursuant to Rule 60(b), W.Va. R.C.P., 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." Syl. Pt. 1,
Builders Service and Supply Co. v. Dempsey, 224
W.Va. 80, 680 S.E.2d 90 (2009).
only argument on appeal is that the circuit court abused its
discretion in setting aside the default judgment against
respondent. We disagree. We have previously held that
"[t]he Rules of Civil Procedure pertaining to the
setting aside of default judgments should be liberally
construed in order to provide the relief from onerous
consequences of default judgments." Syl. Pt. 2,
Parsons v. McCoy, 157 W.Va. 183, 202 S.E.2d 632
(1973). We have also held that "if any doubt exists as
to whether relief should be granted such doubt should be
resolved in favor of setting aside the default judgment in
order that the case may be heard on the merits." Syl.
Pt.2 McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8
(1972). The circuit court is to consider the following
factors when deciding whether a default judgment should be
vacated pursuant to Rule 60(b) of the West Virginia Rules of
In determining whether a default judgment should be entered
in the face of a Rule 60(b) motion or vacated upon a Rule
60(b) motion, the trial court should consider: (1) The degree
of prejudice suffered by the plaintiff from the delay in
answering; (2) the presence of material issues of fact and
meritorious defenses; (3) the significance of the interests
at stake; and (4) the degree of intransigence on the part of
the defaulting party.
Syl. Pt. 3, Parsons v. Consol. Gas Supply Corp., 163
W.Va. 464256 S.E.2d 758 (1979). Further,
[i]n addressing a motion to set aside a default judgment,
"good cause" requires not only considering the
factors set out in Syllabus point 3 of Parsons v.
Consolidated Gas Supply Corp., 163 W.Va. 464, 256 S.E.2d
758 (1979), but also requires a showing that a ground set out
under Rule 60(b) of the West Virginia Rules of Civil
Procedure has been satisfied.
Syl. Pt. 5, Hardwood Group v. Larocco, 219 W.Va. 56,
631 S.E.2d 614 (2006).
clear from the record that, when applying these factors to
the instant case, the circuit court found that there was no
evidence that petitioner had been unduly prejudiced by
respondent's delay in answering and that the motion to
set aside default judgment was filed within a
"reasonable time, " as required by Rule 60(b) of
the West Virginia Rules of Civil Procedure. The circuit court
also found that respondent established a meritorious defense
in her counterclaim alleging that there were inaccuracies
and/or fictitious billing items and that petitioner did not
adequately represent her in the underlying divorce action.
The circuit court further found that the amount of money at
stake was over $14, 000 and that the amount would be
significant to respondent "who is a mother of two
children." The circuit court further found that there
was "not substantial intransigence" on
respondent's part and she demonstrated a desire to
contest the case below.
final consideration in this case is whether respondent has
shown some excusable neglect under Rule 60(b). As we have
previously recognized, "the stronger the excusable
neglect or good cause shown, the more appropriate it is to
give relief against the default judgment." White v.
Berryman,187 W.Va. 323, 332, 418 S.E.2d 917, 926
(1992). In the instant case, the circuit court correctly
determined that it was proper to set aside default judgment
due to the lack of prejudice to petitioner, the significant
amount of money in controversy, the existence of meritorious
defenses, respondent's timely filing of her motion to set
aside, and respondent's desire to contest the case below.
Weighing these findings with respondent's claim that she