Mark W. Chamblee, Real property known as 50 Savannah Sparrow Lane, Martinsburg, Berkeley County, WV, Defendant Below, Petitioner
State of West Virginia, Eastern Panhandle Drug & Violent Crimes Task Force, Plaintiff Below, Respondent
Berkeley County CC-02-2017-P-158
Mark W. Chamblee, by counsel James T. Kratovil, appeals the
Circuit Court of Berkeley County's March 8, 2018, order
denying his motion to set aside a default judgment.
Respondent State of West Virginia, Eastern Panhandle Drug
& Violent Crimes Task Force, by counsel Catie Wilkes
Delligatti, filed a response and supplemental appendices. On
appeal, petitioner asserts that he established good cause for
setting aside the default judgment by presenting evidence of
medical issues that prevented him from filing an answer.
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.
12, 2017, the State initiated forfeiture proceedings against
certain real property owned, but not occupied, by petitioner
(the "subject property"). The State alleged that on
June 27, 2016, a federal search warrant was executed at the
subject property based upon probable cause to believe that
the subject property's occupants (petitioner's
tenants) were distributing illegal narcotics from it.
Following execution of the search warrant, Sergeant Theodore
Snyder with the Eastern Panhandle Drug & Violent Crime
Task Force ("Task Force") notified petitioner that
the subject property was being used for the distribution of
heroin and that further drug activity may result in
forfeiture of the subject property.
forfeiture petition also detailed that the Task Force
obtained a wire intercept order on February 1, 2017, through
which it monitored certain mobile phone conversations.
Conversations overheard and recorded pursuant to this order
revealed drug activity at the subject property during
February of 2017. Additionally, another search warrant was
executed at the subject property on March 10, 2017. At that
time, money, drugs, phones, and miscellaneous paperwork were
seized from the subject property. Accordingly, the State
alleged in its petition that the subject property "has
been used continuously in the commission of illegal drug
transactions in violation of the West Virginia Contraband
was served with the petition for forfeiture via certified
mail. Petitioner signed for the petition, and although he did
not date the return receipt, it was received by the circuit
clerk's office on June 22, 2017. Further, notice by
publication was made on June 23, 2017, and June 30, 2017.
filed no answer or claim. Accordingly, on August 9, 2017, the
circuit court granted the State's motion for judgment of
forfeiture and entered its "Order of Judgment." In
that order, the court found that the subject property was
subject to forfeiture under West Virginia Code §
60A-7-703(a)(8) because it was real property that was used
repeatedly to facilitate the commission of delivery of
heroin, and because petitioner was made aware of this fact
yet knowingly allowed the deliveries to continue. The court
vested title to the subject property in the Task Force.
Petitioner received copies of both the motion for judgment of
forfeiture and "Order of Judgment."
six months after entry of the "Order of Judgment,"
on January 31, 2018, petitioner moved to set the default
judgment aside under Rule 60(b) of the West Virginia Rules of
Civil Procedure. Petitioner asserted that "a series of
unavoidable causes melded together to not allow him to file
an answer to the complaint in a timely fashion,"
including his wife's mistaken disposal of the petition,
his prescription medication causing short-term memory loss
and confusion, and ongoing medical issues.
circuit court held a hearing on petitioner's motion to
set aside the default judgment on March 1, 2018. Petitioner
testified that in March of 2017, he was taking antirejection
medication that caused confusion, but he also explained that
he had been taking this medication since his kidney
transplant in approximately 2012. He further detailed that he
had diabetic neuropathy in both legs, had Lasix implants that
"didn't work in [his] right eye," had cancer in
his ears, and suffered frequent falls. Petitioner listed
medications he was taking in addition to the antirejection
medication, which included insulin, blood pressure
medication, blood thinners, fish oil, and cinnamon bark.
Petitioner asserted that all of these medications made him
acknowledged that he contacted the circuit clerk's office
at some point to ask "[w]hat this letter was in the mail
and explain it to me, what do I need to do to correct this
situation." Petitioner states that he was instructed to
retain counsel and "file it with the court."
Petitioner could not pinpoint when he made this call,
however. He asserted only that "[t]ime is mixed up right
now." Petitioner also acknowledged coming to the
courthouse to observe the criminal proceedings against Mary
Bush, the tenant arrested as a result of drug activity in the
subject property, and sending her money while she was in
jail. Further, petitioner stated that he pursued eviction
proceedings in magistrate court against Ms. Bush, which were
completed in March of 2017.
daughter, Amy Lynn Brown, also testified at the March 1,
2018, hearing. Ms. Brown testified that petitioner was
"kind of like a stranger" during the spring of 2017
because he "was doing things and saying things that . .
. didn't fit with his character" and not
"making any sense." Ms. Brown also said that she
"noticed a . . . character change" in 2016, but
"towards the end of last summer"-summer
2017-"I started seeing him trying to get things in
order." Ms. Brown testified that petitioner owns other
rental properties, which he was able to manage during the
summer of 2017.
March 8, 2018, the circuit court denied petitioner's
motion to set aside the judgment, finding that it was not
filed within a reasonable time. The court found little
evidence of any substantial confusion occurring beyond the
spring of 2017, and that petitioner continues to suffer from
the same medical conditions and some confusion despite now
being able to participate in court proceedings. Thus, the
court was "not persuaded" that petitioner could not
have filed his motion before January 31, 2018.
court also found that petitioner failed to establish
excusable neglect in moving to set aside the judgment. The
court based this conclusion primarily on the seeming
disconnect between petitioner's assertions of a
medically-based inability to participate in his own legal
proceedings and his admission to attending other court
proceedings, such as Ms. Bush's June 12, 2017,
preliminary hearing. It is from this order that petitioner
60(b) of the West Virginia Rules of Civil Procedure provides,
in pertinent part, that "[o]n motion and upon such terms
as are just, the court may relieve a party . . . from a final
judgment, order, or proceeding for the following reasons: (1)
Mistake, inadvertence, surprise, excusable neglect, or
unavoidable cause." Motions filed under this rule are
"addressed to the sound discretion of the court and the
court's ruling on such motion will not be disturbed on
appeal unless ...