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Arbuckle v. Smith

Supreme Court of West Virginia

March 23, 2018

Douglas Arbuckle, Defendant Below, Petitioner
v.
Walter Smith, Plaintiff Below, Respondent

          Monroe County 15-C-35

          MEMORANDUM DECISION

         Petitioner 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's order.

         The 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.

         Petitioner, 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.

         On 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.

          On May 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.

         On 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 pleadings."

         Petitioner 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."

         Meanwhile, 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.

         In 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 appeals.

         Rule 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).
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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 ...

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