Douglas Arbuckle, pro se, appeals the February 10, 2017,
order of the Circuit Court of Monroe County denying his
motion to set aside a default judgment awarded to Respondent
Walter Smith in the amount of $51, 423.95, plus interest, at
the rate provided by law. Respondent, by counsel William D.
Stover, filed a summary response in support of the circuit
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,
the 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.
a licensed attorney, represented respondent in a prior action
where, on June 5, 2013, judgment was entered against
respondent in the amount of $33, 323.37. On June 1, 2015,
respondent filed the instant action alleging that
petitioner's representation of him had been negligent. In
an amended complaint filed on July 1, 2015, respondent sought
compensatory and incidental damages plus court costs,
attorney's fees, and interest. Petitioner filed an answer
to the amended complaint on August 11, 2015. Petitioner
asserted a statute of limitations defense, claimed that
respondent's action was frivolous pursuant to Rule 11 of
the West Virginia Rules of Civil Procedure, and otherwise
generally denied respondent's allegations. In the answer,
petitioner listed his address as 205 North Court Street,
Lewisburg, West Virginia.
April 14, 2016, the circuit court entered a scheduling order.
The circuit court set the pretrial conference for October 17,
2016, and the trial for November 16, 2016. The circuit court
directed that a copy of the scheduling order be sent to
petitioner at the North Court Street address that was
provided in his answer to the amended complaint.
11, 2016, respondent filed a motion to compel discovery
because petitioner failed to respond to a set of
interrogatories and a request for production of documents
sent to him on March 15, 2016. By order entered May 15, 2016,
the circuit court directed petitioner to comply with
respondent's discovery requests within thirty days of the
order. When petitioner still failed to produce the requested
discovery within the timeframe directed by the court,
respondent filed a motion for sanctions. In the motion,
respondent sought attorney's fees and asked that a
default be entered for petitioner's non-compliance. On
August 15, 2016, respondent noticed a hearing on the motion
for sanctions for September 19, 2016, and sent the notice to
petitioner at the North Court Street address and also to P.O.
Box 1684, Lewisburg, West Virginia. According to respondent,
his attorney received the post office box address from
petitioner via text message.
August 15, 2016, petitioner answered respondent's
interrogatories, but failed to respond to the request for
production of documents or to appear at the September 19,
2016, hearing on respondent's motion for sanctions.
Following the hearing, by order entered September 26, 2016,
the circuit court directed petitioner to pay respondent $500
for attorney's fees and travel expenses "caused by
[petitioner]'s failure to fully and timely respond"
to respondent's discovery requests and to provide a
complete response to the request for production of documents
within fourteen days of its order. The circuit court
cautioned petitioner that his continued non-compliance would
cause the court to "consider the imposition of further
sanctions, to include: the striking of [petitioner]'s
failed to appear at the October 17, 2016, pretrial
conference. Following the pretrial conference, by order
entered October 21, 2016, the circuit court found that
petitioner failed to comply with the September 26, 2016,
order sanctioning him in the amount of $500 and directing him
to provide a complete response to respondent's request
for production of documents. The circuit court noted that
petitioner failed to make "any communication with
[respondent]'s counsel since the entry of the [September
26, 2016, order]." Given petitioner's non-compliance
with its prior order, the circuit court struck
petitioner's answer and entered a default in
respondent's favor on the issue of liability. The circuit
court ruled that the November 16, 2016, trial would be on the
issue of damages only and directed that a copy of its order
be sent to attorneys and unrepresented parties "at their
respective addresses of record."
on October 18, 2016, respondent sent a notice of hearing for
the November 16, 2016, trial to petitioner at P.O. Box 1684,
Lewisburg, West Virginia. To the notice, respondent attached
a statement setting forth the damages that he would seek at
trial. Petitioner failed to appear at trial. The circuit
court heard respondent's testimony regarding the extent
of his damages, including for inconvenience, aggravation, and
emotional distress. Following trial, the circuit court
entered a default judgment in respondent's favor in the
total amount of $51, 423.95, plus interest, at the rate
provided by law.
contrast to the foregoing, petitioner represents that, on
November 16, 2016, he called the circuit court and was told
that trial was held earlier that day. Subsequently, on
November 22, 2016, judgment was entered against petitioner.
The following day, petitioner filed a motion to set aside the
default judgment pursuant to Rule 60(b) of the West Virginia
Rules of Civil Procedure. On February 6, 2017, the circuit
court held a hearing on petitioner's motion and heard
argument from the parties. By order entered on February 10,
2017, the circuit court denied the motion to set aside the
default judgment. It is from this order that petitioner now
55(c) of the West Virginia Rules of Civil Procedure provides
that, "[f]or good cause shown, " a circuit court
may set aside a default judgment "in accordance with
Rule 60(b)." "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." Syl. Pt. 1, Hardwood Group v.
LaRocco, 219 W.Va. 56, 631 S.E.2d 614 (2006) (internal
quotations and citations omitted). In syllabus points 3 and 5
of Hardwood Group, we held as follows:
3. "In determining whether a default judgment should be
. . . 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."
Syllabus point 3, in part, Parsons v. Consolidated Gas
Supply Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979).
5. In 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 ...