SAMUEL R. AMORUSO, JR. d/b/a QUALITY SUPPLIER TRUCKING, INC., A West Virginia Corporation, Defendant Below, Petitioner
COMMERCE AND INDUSTRY INSURANCE COMPANY, Plaintiff Below, Respondent
Submitted: January 29, 2019
from the Circuit Court of Mineral County The Honorable Lynn
A. Nelson, Judge Case No. 14-C-75
E. Smith II, Esq. Keyser, West Virginia Counsel for
Richard F. Shearer, Esq. Shook, Hardy & Bacon L.L.P
Kansas City, Missouri Clinton W. Smith, Esq. Law Office of
Clinton W. Smith Charleston, West Virginia Counsel for
JUSTICE WALKER delivered the Opinion of the Court. JUSTICE
WORKMAN and JUSTICE HUTCHISON dissent and reserve the right
to file dissenting opinions.
BY THE COURT
"'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.
3, Intercity Realty Co. v. Gibson, 154 W.Va. 369');">154 W.Va. 369,
175 S.E.2d 452 (1970) [overruled on other grounds by
Cales v. Wills, 212 W.Va. 232');">212 W.Va. 232, 569 S.E.2d 479
(2002)]." Syllabus Point 6, Games-Neely ex rel.
W.Va. State Police v. Real Prop., 211 W.Va. 236');">211 W.Va. 236, 565
S.E.2d 358 (2002).
"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. Consol. Gas Supply
Corp., 163 W.Va. 464');">163 W.Va. 464, 256 S.E.2d 758 (1979).
"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');">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." Syllabus Point 5,
Hardwood Grp. v. Larocco, 219 W.Va. 56');">219 W.Va. 56, 631 S.E.2d
"'To enable a court to hear and determine an action,
suit or other proceeding it must have jurisdiction of the
subject matter and jurisdiction of the parties; both are
necessary and the absence of either is fatal to its
jurisdiction.' Syl. Pt. 3, State ex rel. Smith v.
Bosworth, 145 W.Va. 753');">145 W.Va. 753, 117 S.E.2d 610 (1960)."
Syllabus Point 1, Leslie Equip. Co. v. Wood Res. Co.,
L.L.C, 224 W.Va. 530');">224 W.Va. 530, 687 S.E.2d 109 (2009).
erroneous application of the law does not render a judgment
void and, therefore, does not provide a basis for relief from
void judgments under Rule 60(b)(4) of the West Virginia Rules
of Civil Procedure.
WALKER, Chief Justice.
and Industry Insurance (Commerce and Industry) filed a breach
of contract claim against Petitioner Samuel L. Amoruso, Jr.
d/b/a Quality Supplier Trucking, Inc. (Amoruso) for breach of
contract by failing to pay insurance premiums. Although
Amoruso answered the original complaint and responded to
discovery in the case, he did not respond to Commerce and
Industry's properly served amended complaint. Nearly
sixteen months after Commerce and Industry obtained a default
judgment against Amoruso, he filed a motion to set aside the
default judgment, arguing that he was not a proper party to
the action. Because the grounds on which Amoruso sought to
have the judgment set aside are subject to a one-year time
limitation under Rule 60(b) of the West Virginia Rules of
Civil Procedure, the circuit court denied Amoruso's
motion as untimely.
appeal, Amoruso raises these same grounds to set aside the
judgment as those made below, which we agree were untimely
under Rule 60(b). And, although not raised below, Amoruso
argues that the judgment is void for lack of personal
jurisdiction because Commerce and Industry did not sue the
proper entity. While void judgments are not subject to the
strict one-year time frame set forth in Rule 60(b), the
circuit court did not lack personal jurisdiction over Amoruso
so as to render the judgment void. So, we find that the
circuit court did not abuse its discretion in denying
Amoruso's motion to set aside the default judgment.
FACTUAL AND PROCEDURAL BACKGROUND
2014, Commerce and Industry Insurance filed a complaint in
the Circuit Court of Mineral County for breach of contract
against "Samuel L. Amoruso, Jr., d/b/a Quality Supplier
Trucking, Inc." for failure to pay premiums under a
workers' compensation insurance policy. The summons and
complaint were served upon Amoruso. Amoruso, appearing pro
se, filed an answer generally denying the allegations; he did
not assert any affirmative defenses. Commerce and Industry
then filed discovery requests to which Amoruso did not
respond. Commerce and Industry filed a motion to compel,
which was set for hearing. Amoruso did not attend the hearing
and the circuit court entered an order compelling Amoruso to
respond to the discovery requests. Amoruso responded to the
discovery requests, again generally denying that he owed the
amount due. Amoruso alleges that he had been in discussions
with Commerce and Industry during this time and believed the
matter would ultimately be settled.
2015, Commerce and Industry filed a motion to amend its
complaint. Amoruso received proper notice of the hearing
conducted by the circuit court on the motion, but he did not
appear to contest. Given leave to file an amended complaint
by the circuit court, Commerce and Industry alleged that
Amoruso owed premiums under an additional workers'
compensation policy. On August 19, 2015, Amoruso was served
with the amended complaint and summons in person. The summons
contained the requisite language "[i]f you fail [to
serve an answer to the Amended Complaint within 20 days of
service], judgment by default will be taken against you for
the relief demanded in the complaint[.]" Amoruso did not
respond to the amended complaint.
January 2016, Commerce and Industry filed a motion for
default judgment. The circuit court granted the motion and
entered judgment in favor of Commerce and Industry on January
28, 2016. After attempting to collect the judgment, Commerce
and Industry filed a writ of execution in April 2017, which
it amended in May 2017. On May 19, 2017, Amoruso, now
represented by counsel, filed a motion to set aside the
default judgment under Rule 60(b) of the West Virginia Rules
of Civil Procedure.
motion contended that Commerce and Industry's
workers' compensation policy was in the name of
"Q.S.I., Inc." of which Commerce and Industry was
aware and they instead chose to pursue the unpaid amounts
from Amoruso in his personal capacity d/b/a Quality Supplier
Trucking, Inc. The motion included a print-out from the West
Virginia Secretary of State's website identifying Amoruso
as the Treasurer and Vice-President of Q.S.I., Inc., as well
as the workers' compensation policy issued to Q.S.I.,
Inc., and past-due notices sent to Q.S.I., Inc. Because
Commerce and Industry allegedly sued the wrong entity by
suing him in his personal capacity rather than suing Q.S.I.,
Inc., Amoruso alleged in his motion that Commerce and
Industry had either made a mistake, or negligently or
intentionally perpetrated a fraud on the court by
misrepresenting salient facts. Amoruso also sought relief
from the judgment under excusable neglect, arguing that he
had appeared pro se at the time the judgment was entered and
had been communicating with Commerce and Industry regarding
settlement of the dispute.
the hearing on Amoruso's motion, his counsel argued the
same points raised in his written motion and additionally
asserted that Commerce and Industry's counsel was
"going around the State trying to ram judgments wherever
he wants." The circuit court responded that
Amoruso's counsel was out of line and that it was out of
line for Amoruso to "ha[ve] spen[t] his whole entire
career creating these damn companies so he can hide behind
money that he owes people."
response, Commerce and Industry argued that under Rule 60(b),
those seeking to set aside a default judgment on the grounds
of mistake, fraud, or excusable neglect must do so within one
year of the judgment, which had passed nearly four months
prior. Alternatively, Commerce and Industry argued that the
circuit court should not grant the motion to set aside the
default judgment because Amoruso had never explained why he
failed to answer the amended complaint and he was apparently
under the impression that the matter would go away if he
ignored it. The circuit court denied Amoruso's motion to
set aside the default judgment on the grounds that it was
untimely. It is from that order that Amoruso now appeals,
arguing, in addition to the grounds raised to the circuit
court below, that the circuit court lacked personal
jurisdiction over him and was prejudiced against him as
evidenced by the comments made by the court relating to his
II.STANDARD OF ...