Evans v. Holt
Annotate this Case
January 1995 Term
__________
No. 22342
__________
GEORGE W. EVANS,
Plaintiff Below, Appellee
v.
JACK E. HOLT AND JOHN DOE,
D/B/A
CASTURO TRANSPORTATION SERVICE,
Defendants Below,
CASTURO TRANSPORTATION SERVICE,
Defendant Below, Appellant
_______________________________________________
Appeal from the Circuit Court of Mingo County
Honorable Elliott Maynard, Circuit Judge
Civil Action No. 91-C-8949
Reversed and Remanded
______________________________________________
Submitted: January 17, 1995
Filed: April 14, 1995
Larry E. Thompson
Michael Thornsbury
Thornsbury & Thompson
Williamson, West Virginia
Attorneys for the Appellee
L. David Duffield
Scott W. Andrews
Offutt, Eifert, Fisher & Duffield
Huntington, West Virginia
Attorneys for the Appellant Casturo
Transportation Service
JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "[I]n an action against a non-resident motorist[,] service
of process may be had upon the . . . [Secretary of State] provided
that notice of such service and a copy of the process shall
forthwith be forwarded by the . . . [Secretary of State] to the
defendant by registered mail, return receipt requested, and the
return receipt, signed by the defendant or his duly authorized
agent, or the registered mail, showing thereon the stamp of the
post office department that delivery has been refused by the
addressee, is appended to the original process and filed therewith
in the clerk's office, the return of the registered mail showing
the stamp of the post office department that addressee is "Unknown"
is not sufficient compliance with the statute to sustain a default
judgment rendered against a nonresident defendant." Syl. Pt. 4, in
part, Mollohan v. North Side Cheese Co., 144 W. Va. 215, 107 S.E.2d 372 (1959).
2. Where a plaintiff seeks to obtain service of process on a
nonresident defendant in accordance with the procedures outlined in
West Virginia Code § 56-3-31(e) (Supp. 1994), and where the
registered or certified mail containing service of process is
returned to the Secretary of State's Office showing thereon the
stamp of the post office department that delivery was unable to be
made due to the "Insufficient Address" of the addressee, then the plaintiff, provided no other action has been taken under said
statutory provisions, has failed to serve the nonresident defendant
with process in compliance with the statute.
3. Under the provisions of West Virginia Code § 56-3-31
(Supp. 1994), in order for a duly authorized agent to accept
service of process on behalf of a nonresident defendant, there must
be clear, unambiguous and express terms on the notice of service of
process sent by the Secretary of State to the nonresident
defendant's duly authorized agent that the copy of the summons and
complaint are not being served on the duly authorized agent in his
individual capacity, but on the nonresident defendant. Further,
the nonresident defendant's duly authorized agent must acknowledge
on the return receipt signed by said individual that service of
process has been accepted on behalf of the nonresident defendant.
4. The statutory language of West Virginia Code § 56-3-31(g)
(Supp. 1994) unequivocally mandates that in order for service to be
properly effected upon a nonresident defendant's insurance company,
the plaintiff must file with the clerk of the circuit court an
affidavit containing various averments as set forth by statute.
5. "A default judgment obtained in accordance with the
provisions of Rule 55(b), West Virginia Rules of Civil Procedure,
is a valid and enforceable judgment and a motion to set aside such judgment will not be granted unless the movant shows good cause
therefor as prescribed in Rule 60(b) of the aforesaid Rules of
Civil Procedure." Syl. Pt. 1, Intercity Realty Co. v. Gibson, 154
W. Va. 369, 175 S.E.2d 452 (1970).
6. "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 such discretion." Syl. Pt. 3, Intercity Realty Co. v.
Gibson, 154 W. Va. 369, 175 S.E.2d 452 (1970).
7. "Although 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." Syl. Pt. 2, McDaniel v.
Romano, 155 W. Va. 875, 190 S.E.2d 8 (1972).
8. "A default judgment rendered against nonresident motorists
for damages arising out of the alleged negligent operation of a
motor vehicle in this State is void for lack of jurisdiction where
registered mail containing copies of process, forwarded to such
nonresident motorists by the . . . [Secretary of State], after
service upon him, was returned bearing the post office department's
notation 'Unknown'." Syl Pt. 5, Mollohan v. North Side Cheese Co.,
144 W. Va. 215, 107 S.E.2d 372 (1959).
Workman, J.:
This case is before the Court upon the appeal of Casturo
Transportation ServiceSee footnote 1 (hereinafter referred to as Casturo) from
the December 16, 1993, order of the Circuit Court of Mingo County
which denied the Appellant's motion to dismiss or alternatively, to
set aside a default judgment. The Appellant raises the following
assignments of error: 1) the circuit court erred when it found
that the Appellant had been validly served with process and that
the Appellee had complied with the provisions of West Virginia Code
§ 56-3-31 (Supp. 1994); 2) the circuit court erred when it failed
to dismiss this action against the Appellant because the Appellant
has never been validly served with process in this instant action;
3) the circuit court erred when it failed to set aside the default
judgment improperly obtained against the Appellant by the Appellee;
4) the circuit court erred when it refused to reconsider its prior
decision denying the Appellant's motion to dismiss or
alternatively, to set aside default judgment; 5) the circuit erred
in that its decision to overrule and deny the Appellant's motion to
dismiss or alternatively, to set aside default judgment does not
comply with currently existing West Virginia law, including but not limited to West Virginia Code § 56-3-31; 6) the circuit court erred
when it held that the Defendant below, Jack E. Holt was a "duly
authorized agent" of the Appellant, as defined in West Virginia
Code § 56-3-31(h)(1); 7) the circuit court erred when it found
that there was actual service of process completed on the Appellant
which eliminated the need for an affidavit for service on the
Appellant's insurance company; 8) the circuit court erred when it
found that on August 28, 1992, the Appellee's counsel communicated
with the Appellant's insurance carrier and was told that an answer
would be filed, because there is no documentation concerning any
communication between the Appellee's counsel and the Appellant's
insurance carrier on or about August 28, 1992, and the Appellant
contests the validity of this finding; 9) the circuit court erred
in granting Appellee default judgment and awarding damages in the
sum of $1,058,240 when, in fact, the Appellant had no notice of the
Appellee's motion for default judgment or the writ of inquiry
conducted as to the amount of damages prior to such proceedings,
nor did the Appellant ever have an opportunity to contest this
award of default judgment prior to its entry; and 10) the circuit
court erred when it failed to grant relief from judgment to the
Appellant under Rule 60(b) of the West Virginia Rules of Civil
Procedure (hereinafter also referred to as "Rule 60(b)").
Having reviewed the record, the parties' briefs and all other
matters submitted before this Court, we conclude that the Appellant was not served with process in compliance with the provisions of
West Virginia Code § 56-3-31. Accordingly, we reverse and remand
the circuit court's decision for further proceedings consistent
with this opinion.See footnote 2
I.
On June 21, 1989, the Appellee's vehicle and a truck owned by
the Appellant and driven by Mr. Holt,See footnote 3 collided on Route 52 in
Mingo County, West Virginia. The Appellant is a foreign business
entity operating as a sole proprietorship, while Mr. Holt was a
nonresident motorist.
Nearly two years later, on June 19, 1991, the Appellee filed
a complaint sounding in negligence and seeking joint and several
liability against Mr. Holt and the Appellant. Subsequently, on
July 5, 1991, the Appellee's counsel attempted to effect service of process on the AppellantSee footnote 4 and Mr. HoltSee footnote 5 through the West Virginia
Secretary of State's Office. On July 29, 1991, the Secretary of
State informed the Clerk of the Circuit Court of Mingo County that
service of process of the complaint and summons "in the name and on
behalf of Jack E. Holt" had been effected on Mr. Holt. It is
undisputed that Mr. Holt received the complaint and signed for the
service of process sent to him at his address. Similarly, on that
same date the Secretary of State informed the circuit court clerk
that the original complaint and summons "in the name and on behalf
of Casturo Transportation Service" had been returned from the post
office marked "Returned For Better Address, INSUFFICIENT ADDRESS."
The record indicates that the Appellee made no further attempts to
serve the Appellant either through the Secretary of State's Office
or otherwise; however, on July 24, 1992, the Appellee's counsel
mailed a copy of the summons and complaint to the Appellant's insurance carrier, Home Insurance Company (hereinafter referred to
as "Home"), which was received by Home on July 27, 1992.See footnote 6
The Appellee filed a motion for default judgment against the
Appellant on September 9, 1992. On that same day, the circuit
court granted the Appellee's motion. Subsequently, on June 2,
1993, a writ of inquiry was held on the issue of damages, resulting
in the circuit court awarding the Appellee damages in the amount of
$1,058,240, plus prejudgment and post-judgment interest.See footnote 7
On November 18, 1993, within a month after being informed of
the default judgment entered against it, the Appellant filed a
motion to dismiss or alternatively, to set aside the default
judgment. The circuit court conducted a hearing on the Appellant's
motion on December 16, 1993, which resulted in the denial of the
Appellant's motion. The circuit court also denied the Appellant's
subsequent motion for reconsideration of the Appellant's motion to
dismiss.
II.
The crux of this case centers on whether the circuit court
erred in finding that the Appellant was served with process in
compliance with the provisions of West Virginia Code § 56-3-31,
when the circuit court held that:
Jack E. Holt was the duly authorized agent of
Casturo . . . , in that Jack E. Holt was
operating a motor vehicle owned by the
nonresident corporation, Casturo . . . . That
service on the Secretary of State as statutory
agent and service on Jack E. Holt as the duly
authorized [agent] of Casturo . . ., was
sufficient and adequate service of process.
The Appellant argues that the Appellant was never served with
process due to an insufficent address. Further, the Appellant
maintains that Mr. Holt was not acting as the duly authorized agent
of the Appellant when he accepted service of process because the
service of process Mr. Holt accepted was intended specifically for
him as an individual defendant. The Appellant asserts that the
service of process accepted by Mr. Holt was neither designated for
the Appellant nor for Mr. Holt as the Appellant's duly authorized
agent. Finally, the Appellant contends that while service of
process could have been effected upon Home, the Appellee's counsel
only mailed a copy of the complaint to Home more than a year after
service of process was originally attempted, thereby failing to
comport with the requirements of West Virginia Code § 56-3-31(g).
In contrast, the Appellee maintains that not only was the Appellant
properly served with process within the purview of West Virginia
Code § 56-3-31 when Mr. Holt accepted process on the Appellant's
behalf as its duly authorized agent, but the Appellant also
received actual notice when the Appellant's insurer received a copy
of the summons and complaint.
According to the language of West Virginia Code § 56-3-31,
there are three methods by which the Appellee could have effected
service of process of the summons and complaint upon the Appellant
in this case: 1) by serving the Appellant; 2) by serving the
Appellant's duly authorized agent; or 3) by serving the Appellant's insurer. Specifically, West Virginia Code § 56-3-31(e) provides
for service of process upon a nonresident defendant as follows:
[s]ervice of process upon a nonresident
defendantSee footnote 8 shall be made by leaving the
original and two copies of both the summons
and complaint, together with the bond
certificate of the clerk, and a fee of five
dollars with the secretary of state, or in his
or her office, and said service shall be
sufficient upon the nonresident defendant . .
. Provided, That notice of service and a copy
of the summons and complaint shall be sent by
registered or certified mail, return receipt
requested, by the secretary of state to the
nonresident defendant. The return receipt
signed by the defendant or his or her duly
authorized agent shall be attached to the
original summons and complaint and filed in
the office of the clerk of the court from
which process is issued. In the event the
registered or certified mail sent by the
secretary of state is refused or unclaimed by
the addressee or if the addressee has moved
without any forwarding address, the registered
or certified mail returned to the secretary of
state, or to his or her office, showing
thereon the stamp of the post office
department that delivery has been refused or
not claimed or that the addressee has moved
without any forwarding address, shall be
appended to the original summons and complaint
and filed in the clerk's office of the court
from which process issued. The court may
order such continuances as may be reasonable
to afford the defendant opportunity to defend
the action.
W. Va. Code § 56-3-31 (footnote and emphasis added). Further,
West Virginia Code § 56-3-31(g) provides for service of process on
a nonresident defendant's insurer as follows:
[i]n the event service of process upon a
nonresident defendant cannot be effected
through the secretary of state as provided by
this section, service may be made upon the
defendant's insurance company. The plaintiff
must file with the clerk of the circuit court
an affidavit alleging that the defendant is
not a resident of this state; that process
directed to the secretary of state was sent by
registered or certified mail, return receipt
requested; that the registered or certified
mail was returned to the office of the
secretary of state showing the stamp of the
post office department that delivery was
refused or that the notice was unclaimed or
that the defendant addressee moved without any
forwarding address; and that the secretary of
state has complied with the provisions of
subsection (e) herein. Upon receipt of
process the insurance company may, within
thirty days, file an answer or other pleading
and take any action allowed by law in the name
of the defendant.
W. Va. Code § 56-3-31(g)(emphasis added).
It is well-established that West Virginia Code § 56-3-31 "is
in derogation of common law in allowing a summons to be served upon
the . . . [Secretary of State] in an action against a non-resident
defendant and therefore must be strictly adhered to in accordance
with its clear and unambiguous terms." Syl. Pt. 2, Stevens v.
Saunders, 159 W. Va. 179, 220 S.E.2d 887 (1975); accord Mollohan v.
North Side Cheese Co., 144 W. Va. 215, 107 S.E.2d 372 (1959). It
is under the guidance of this principle that we examine whether the Appellee strictly adhered to the above-mentioned unambiguous
statutory terms. See Syl. Pt. 2, Stevens, 159 W. Va. at 179, 220 S.E.2d at 888.
A.
It is undisputed that service of process through the Secretary
of State's office was never made on the actual Appellant in this
case due to an insufficient address. See W. Va. Code § 56-3-31(e).
As we have previously held in syllabus point 4 of Mollohan,
in an action against a non-resident
motorist[,] service of process may be had upon
the . . . [Secretary of State] provided that
notice of such service and a copy of the
process shall forthwith be forwarded by the .
. . [Secretary of State] to the defendant by
registered mail, return receipt requested, and
the return receipt, signed by the defendant or
his duly authorized agent, or the registered
mail, showing thereon the stamp of the post
office department that delivery has been
refused by the addressee, is appended to the
original process and filed therewith in the
clerk's office, the return of the registered
mail showing the stamp of the post office
department that addressee is "Unknown" is not
sufficient compliance with the statute to
sustain a default judgment rendered against a
nonresident defendant.
144 W. Va. at 216, 107 S.E.2d at 373. Similarly, where a plaintiff
seeks to obtain service of process on a nonresident defendant in
accordance with the procedures outlined in West Virginia Code § 56-
3-31(e), and where the registered or certified mail containing
service of process is returned to the Secretary of State's Office showing thereon the stamp of the post office department that
delivery was unable to be made due to the "Insufficient Address" of
the addressee, then the plaintiff, provided no other action has
been taken under said statutory provisions, has failed to serve the
nonresident defendant with process in compliance with the statute.
B.
Next, we address whether the circuit court erred in finding
that service of process was made on the Appellant in accordance
with West Virginia Code § 56-3-31, where the Appellee contends that
the Appellant was served through its duly authorized agent, Mr.
Holt. Specifically, the circuit court found that "the complaint
allegedSee footnote 9 that Jack E. Holt was acting as a duly authorized agent of
Casturo . . . ."
Under the provisions of West Virginia Code § 56-3-31(h)(1), a
"[d]uly authorized agent" includes "a person who operates a motor vehicle in this state for a nonresidentSee footnote 10 . . . in pursuit of
business . . . or who comes into this state and operates a motor
vehicle for, or with the knowledge or acquiescence of, a
nonresident . . . ; and includes, among others, . . . a person who,
at the residence, place of business or post office of such
nonresident, usually receives and acknowledges receipt for mail
addressed to the nonresident." W. Va. Code § 56-3-
31(h)(1)(footnote and emphasis added). Implicit in this
definitional language is the requirement that a duly authorized
agent is an individual who understands and is cognizant of the fact
that he or she is accepting mail on behalf of the nonresident
defendant. Clearly, an allegation in a complaint that an
individual is an agent for the purposes of instituting a cause of
action in negligence does not constitute compliance with the
requirements of West Virginia Code § 56-3-31.
Accordingly, under the provisions of West Virginia Code § 56-
3-31, in order for a duly authorized agent to accept service of
process on behalf of a nonresident defendant, there must be clear,
unambiguous and express terms on the notice of service of process
sent by the Secretary of State to the nonresident defendant's duly
authorized agent that the copy of the summons and complaint are not being served on the duly authorized agent in his individual
capacity, but on the nonresident defendant. Further, the
nonresident defendant's duly authorized agent must acknowledge on
the return receipt signed by said individual that service of
process has been accepted on behalf of the nonresident defendant.
It is only through these requirements that the duly authorized
agent is put on notice that he is acting on behalf of a nonresident
defendant in accepting service of process.
In this case, both Mr. Holt and the Appellant were named
defendants in this case. Thus, the Appellee had to effect service
of process on both Mr. Holt and the Appellant. Consequently, when
Mr. Holt accepted service of process for a complaint naming him as
an individual defendant, he had no reason to conclude that he was
also accepting service of process for the Appellant and, therefore,
was under any obligation to inform the Appellant of the lawsuit.
The only way Mr. Holt could have been served with the Appellant's
notice and copy of the summons and complaint would have been for
the Appellee to have informed the Secretary of State that service
of process on the Appellant was to be made on Mr. Holt as the
Appellant's duly authorized agent. Then, presumably, Mr. Holt would
have been served with not only his copy of the summons and
complaint, but with the Appellant's copies also. Accordingly, the
circuit court erred in relying upon an allegation in a complaint to
conclude that Mr. Holt was the Appellant's "duly authorized agent," and further, in concluding that service of process had been
effected on the Appellant through Mr. Holt.
C.
Finally, we determine whether the Appellee properly served the
Appellant's insurer, Home, under the provisions of West Virginia
Code § 56-3-31, by virtue of simply mailing a copy of the summons
and complaint to Home more than a year after the Appellee failed to
obtain service of process on the Appellant. The statutory language
of West Virginia Code § 56-3-31(g) unequivocally mandates that in
order for service to be properly effected upon a nonresident
defendant's insurance company, "[t]he plaintiff must file with the
clerk of the circuit court an affidavit" containing various averments as set forth by statute.See footnote 11 W. Va. Code § 56-3-
31(g)(emphasis added).
In the present case, the Appellee failed to file the affidavit
required by West Virginia Code § 56-3-31(g). Absent the filing of
this affidavit with the circuit court clerk, the Appellee's mere
mailing of a copy of the summons and complaint to Home did not
comply with the statutory requirements, and service of process was
not obtained on the Appellant's insurer. See W. Va. Code § 56-3-
31(g).
III.
Having concluded that the Appellee failed to obtain service of
process on the Appellant, we turn to whether the circuit court abused its discretion in failing to grant the Appellant's motion to
set aside the default judgment made pursuant to West Virginia Rule
of Civil Procedure 60(b).See footnote 12 The Appellant argues that the default
judgment must be set aside because it is void for lack of service
of process. The Appellee asserts that the circuit court properly
denied the Appellant's motion to set aside the default judgment
because the Appellant could not demonstrate the required grounds
for granting the Rule 60(b) motion.
In syllabus points one and three of Intercity Realty Co. v.
Gibson, 154 W. Va. 369, 175 S.E.2d 452 (1970), we held that
[a] default judgment obtained in
accordance with the provisions of Rule 55(b),
West Virginia Rules of Civil Procedure, is a
valid and enforceable judgment and a motion to
set aside such judgment will not be granted
unless the movant shows good cause therefor as
prescribed in Rule 60(b) of the aforesaid
Rules of Civil Procedure.
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 such discretion.
Id. at 369-70, 175 S.E.2d at 452-53. However, we have also held
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." Syl. Pt. 2, McDaniel v.
Romano, 155 W. Va. 875, 190 S.E.2d 8 (1972).
In determining whether the trial court abused its discretion
in this case, it is significant to note that the Appellant was
pursuing its Rule 60(b) motion specifically under subsection (4) of
that rule, which provides relief on the grounds that "the judgment
is void[.]" In Mollohan, we held that
[a] default judgment rendered against
nonresident motorists for damages arising out
of the alleged negligent operation of a motor
vehicle in this State is void for lack of
jurisdiction where registered mail containing
copies of process, forwarded to such
nonresident motorists by the . . . [Secretary
of State], after service upon him, was returned bearing the post office department's
notation 'Unknown'.
144 W. Va. at 216, 107 S.E.2d at 373-74, Syl. Pt. 5.
Applying the law enunciated in Mollohan to the present case,
since we have already determined that the Appellee failed to obtain
service of process on the Appellant by utilizing various methods
for service of process prescribed by West Virginia Code § 59-3-31,
the default judgment rendered upon the Appellant is void for lack
of jurisdiction. See Mollohan, 144 W. Va. at 216, 107 S.E.2d at
373-74, Syl. Pt. 5. Having met the specific requirement of Rule
60(b)(4), by demonstrating that the judgment is void, the only
other requirement the Appellant had to meet under Rule 60(b) was
that the motion for relief had to be filed "within a reasonable
time."See footnote 13 W.Va.R.Civ.P. 60(b). The default judgment was entered on
September 9, 1992, and, following a writ of inquiry, the order
awarding the Appellee more than a million dollars in damages was
entered on July 2, 1993. The Appellant was not made aware of
either the default judgment or damage award until October 18, 1993,
when the Appellant's insurance company received a certified letter
informing the insurer of the judgment. Within a month after receiving notice of the default judgment, the Appellant filed its
motion to dismiss or alternatively, to set aside default judgment.
A month is certainly a "reasonable time" within which to file a
Rule 60(b) motion considering all the facts of this case. See
W.Va.R.Civ.P. 60(b). Accordingly, because good cause existed to
set aside the default judgment, we find that the trial court abused
its discretion in failing to do so. See Midkiff v.Kenney, 180 W.
Va. 55, 375 S.E.2d 419 (1988).
Based on the foregoing, the decision of the Circuit Court of
Mingo County is reversed and remanded for further proceedings
consistent with this opinion.See footnote 14
Reversed and remanded.
Footnote: 1
Jack E. Holt is also a named Defendant; however, any
potential liability of this Defendant is moot since he obtained a
final decree of discharge in bankruptcy on September 18, 1991,
prior to the entry of the default judgment. Accordingly, Mr.
Holt is not a participant in this appeal.Footnote: 2
For ease of discussion, those assignments of error that are
redundant are consolidated conceptually herein.Footnote: 3
See supra note 1.Footnote: 4
Process for the Appellant was addressed as follows:
John Doe, D/B/A
Casturo Transportation Service
5423 W. Smithfield
Boston, PA 15135Footnote: 5
Process for Mr. Holt was addressed as follows:
Jack E. Holt
430 Main Street W.
#8 South Hills Terrace
Brownsville, PA 15135
Footnote: 6
The Appellee also alleges that the Appellee's counsel
conversed with Veronica Koob, an adjuster for Home, on August 28,
1992, and advised her that no extension of time would be given to
file an answer. According to the Appellee's counsel, Ms. Koob
indicated to him that she had referred the matter to the law firm
of Jenkins, Fenstermaker, Krieger, Kayes & Farrell, in
Huntington, West Virginia.Footnote: 7
It is significant to note that the Appellant never received
notice for either the motion for default judgment or the writ of
inquiry. The Appellant became of aware of the default judgment
against it by a certified letter sent by the Appellee's counsel
to Home on October 18, 1993. West Virginia Rule of Civil
Procedure 55(2), provides, in pertinent part, that
[i]n all other cases the party entitled to a
judgment by default shall apply to the court
therefor and shall file with the court an
affidavit showing the other party's failure
to appear or otherwise defend; . . . . If
the party against who judgment by default is
sought has appeared in the action, he . . .
shall be served with written notice of the
application for judgment at least 3 days
prior to the hearing on such application.
W. Va. R. Civ. P. 55(2) (emphasis added). It is undisputed that
at the time of the default judgment and the writ of inquiry, the
Appellant had not appeared, either by filing an answer or other
responsive pleading, or by making an appearance in court.
Therefore, under the provisions of the rule, the Appellee was not
required to give the Appellant notice of the proceedings. See
id.; see also Investors Loan Corp. v. Long, 152 W. Va. 637, 166 S.E.2d 113 (1969) (stating that notice must be given and served
on party against whom default judgment is sought if party has
appeared in proceeding).
Footnote: 8
West Virginia Code § 56-3-31(h)(5) defines a "nonresident
defendant or defendants" as "a nonresident motorist who, either
personally or through his or her agent, operated a motor vehicle
on a public street, highway or road in this state and was
involved in an accident or collision which has given rise to a
civil action filed in any court in this state." Footnote: 9
The circuit court's finding was based on the following
allegation in the Appellee's complaint: "That on the date and
place aforesaid, Jack E. Holt was driving a vehicle owned by John
Doe, d/b/a Casturo . . . and was acting in the capacity of an
agent and/or employee of John Doe, d/b/a Casturo . . . at the
time of the accident and was acting within the scope of his
employment." It is evident from this allegation that the Appellee
never alleged that Mr. Holt was the "duly authorized agent" of
the Appellant for the purpose of accepting service of process as
the circuit court's finding indicates. Footnote: 10
A "nonresident" is defined as "any person who is not a
resident of this state . . . includ[ing] a nonresident firm,
partnership, corporation or voluntary association. . . ." W. Va.
Code § 56-3-31(h)(3).Footnote: 11
The required allegations include the following:
that the defendant is not a resident of this
state; that process directed to the secretary
of state was sent by registered or certified
mail, return receipt requested; that the
registered or certified mail was returned to
the office of the secretary of state showing
the stamp of the post office department that
delivery was refused or that the notice was
unclaimed or that the defendant addressee
moved without any forwarding address; and
that the secretary of state has complied with
the provisions of subsection (e) herein.
W. Va. Code § 56-3-31(g).
Footnote: 12
West Virginia Rule of Civil Procedure 60(b) provides, in
pertinent part, that:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or unavoidable cause; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), (3), and (6) not more than eight months after the judgment, order, or proceeding was entered or taken.Footnote: 13 Specifically, in syllabus point two of Jenkins v. Johnson, 181 W. Va. 281, 382 S.E.2d 334 (1989), we held that "'[u]nder Rule 60(b) of the West Virginia Rules of Civil Procedure, motions based on grounds numbered (4) and (5) are required only to be filed within a reasonable time and are not constrained by the eight-month period.' Syllabus Point 3, Savas v. Savas, [181] W. Va. [316], [382] S.E.2d [510] [(1989]) . . . ."Footnote: 14 Based on our decision in this case, we decline to address the remainder of the Appellant's assignments of error.
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