Vanscoy v. Anger, et al.
Annotate this CaseSeptember 1998 Term
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No. 25003
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BRUCE WAYNE VANSCOY,
Plaintiff Below, Appellee
v.
MICHAEL GLENN ANGER, CHARLES C.
GEAR AND SCOTT ALAN GODWIN,
Defendants Below, Appellees
CHARLES M. LITTLE,
Defendant Below, Appellant
______________________________________________________
Appeal from the Circuit Court of Randolph County
Honorable John L. Henning, Jr., Judge
Civil Action No. 95-C-159
AFFIRMED
______________________________________________________
Submitted: October 27, 1998
Filed: December 3, 1998
Scott Curnutte
Elkins, WV 26241
Attorney for Bruce Wayne Vanscoy, Appellee
David R. Janes
Tharp, Liotta, Janes & Yokum
Fairmont, WV 26555-1509
Attorney for Charles M. Little, Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "'"A motion to vacate a
judgment made pursuant to Rule 60(b), W.Va.R.C.P., 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. 5, Toler v. Shelton,
157 W.Va. 778, 204 S.E.2d 85 (1974).' Syl. pt. 1, Jackson General Hospital v. Davis,
195 W.Va. 74, 464 S.E.2d 593 (1995)." Syllabus Point 1, Nancy Darlene M. v. James
Lee M., 195 W.Va. 153, 464 S.E.2d 795 (1995).
2. "'At [sic] an appearance in a
suit or action for any purpose other than to question the jurisdiction of the court, or to
set up a lack of process, or defective service is a general appearance.' Syl. Pt. 1, Stone
v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944)." Syllabus Point 5, Lemley v.
Barr, 176 W.Va. 378, 343 S.E.2d 101 (1986).
Per Curiam:
Charles C. Little, the appellant in this proceeding, claims that
the Circuit Court of Randolph County erred in denying his motion to set aside a judgment,
or in the alternative, to grant him a new trial, in an assault and battery action
instituted by Bruce Wayne Vanscoy. In the motion to set aside the judgment, the appellant
claimed that he had not properly been served with a copy of the summons and complaint
instituting the action and that the Circuit Court of Randolph County thus lacked
jurisdiction to entertain it.
FACTUAL BACKGROUND
On September 29, 1995, Bruce Wayne Vanscoy filed a complaint in
the Circuit Court of Randolph County in which he alleged that the appellant and three
other individuals, Michael Glen Anger, Charles C. Gear, and Scott Alan Godwin had
assaulted, battered, and injured him on October 9, 1993.
The memorandum which was submitted with the complaint stated that the appellant's address was Rt. 7, Box 435A, Fairmont, West Virginia. At the time the appellant did not live at that address, which was the address of his parents, but had lived out of state since March, 1995. The Sheriff, nonetheless, attempted to serve the appellant by leaving copies of the summons and complaint with the appellant's mother.
Following the attempted service, the appellant's attorney, by
letter dated October 6, 1995, notified Mr. Vanscoy's attorney and the Circuit Clerk of
Randolph County of the appellant's non-residency in West Virginia. In response, Mr.
Vanscoy's attorney attempted to serve the appellant by making service on his attorney. The
appellant's attorney responded by letter dated October 11, 1996, which stated: "[M]y
representation of [the appellant] is limited and I am not authorized to except [sic]
service of process on his behalf. I must insist that you satisfy the requirements of Rule
4 if you wish for Mr. Little to be properly served."
Subsequently, Mr. Vanscoy's attorney filed an affidavit with
the Circuit Court of Randolph County requesting that the County Clerk of that county issue
an Order of Publication. In the affidavit, the attorney indicated that the prior service
in the case had "been returned without being executed . . . ."
As development of the case proceeded against the other
defendants, copies of the pleadings and correspondence were sent to the appellant's
attorney, and the appellant's attorney initialed an Amended Scheduling Order which was
entered on September 30, 1996.
On February 14, 1997, Mr. Vanscoy's attorney moved for a
default judgment against the appellant and served appellant's attorney with a copy of the
motion via fax. On the same day, the circuit judge's office contacted the appellant's
attorney's office and indicated that a hearing on the motion for default judgment would be
conducted on February 18, 1997, at 8:00 a.m.
The appellant's attorney had another hearing on February 18,
1997, and contacted the circuit court and complained that he had not had adequate notice
of the hearing. Subsequently, Mr. Vanscoy's attorney and the appellant's attorney agreed
to submit a joint motion for continuance and an agreed amended scheduling order. That
motion was reduced to writing, and the appellant's attorney signed above a signature line
indicating that his status was "Counsel for Charles Little" (the appellant). The
circuit court granted the motion.
In spite of this, the case was brought on for bench trial on
February 18, 1997, and at the conclusion of that trial, the court rendered judgment for
Mr. Vanscoy against the appellant and awarded him $100,000, plus interest and costs.
On February 26, 1997, prior to entry of a final judgment order,
the appellant's attorney appeared and moved, pursuant to Rule 60(b) of the West Virginia
Rules of Civil Procedure to set aside the judgment. In the alternative, he moved for a new
trial. After conducting a hearing, the trial court denied the motions.
In the present proceeding, the appellant claims that the
circuit court erred in denying his motion to set aside the judgment or, in the
alternative, to grant him a new trial.
BURDEN OF PROOF
This Court has recognized that:
"'A motion to vacate a judgment made pursuant to Rule 60(b), W.Va.R.C.P., 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. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974)." Syl. pt. 1, Jackson
General Hospital v. Davis, 195 W.Va. 74, 464 S.E.2d 593 (1995).
Syllabus Point 1, Nancy Darlene M. v. James Lee M., 195 W.Va. 153, 464 S.E.2d 795 (1995).
DISCUSSION
As previously indicated, the appellant claims that he was not
properly served with the document instituting this action and that, as a consequence, the
circuit court lacked jurisdiction to enter summary judgment for Bruce Wayne Vanscoy.
While proper service of process is ordinarily necessary to
confer jurisdiction upon a circuit court, this Court has recognized that if a party who
has not received proper service of process, appears generally in an action, that is,
appears for any reason other than to contest the jurisdiction of the court, that party, by
his general appearance, waives any claim regarding the defective service. Lemley v.
Barr, 176 W.Va. 378, 343 S.E.2d 101 (1986), and Moneypenny v. Graham, 149 W.Va.
56, 138 S.E.2d 724 (1964).
In the present case, it appears that the appellant appeared, by
counsel, not only to contest the lack of proper service of process, but also to consent to
the scheduling of certain matters and to move for a joint continuance.
In Syllabus Point 5 of Lemley v. Barr, supra, this Court
stated:
"At [sic] an appearance in a suit or action for any purpose other than to question
the jurisdiction of the court, or to set up a lack of process, or defective service is a
general appearance." Syl. Pt. 1, Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944).
The appellant's attorney rather clearly did appear for matters
other than to challenge the jurisdiction of the court when he agreed to the scheduling
matters and jointly moved for a continuance. In so doing, he appeared generally, and
through his action, the appellant, under the principles in Lemley v. Barr, supra,
and Moneypenny v. Graham, supra, waived his challenge to the jurisdiction of
the court.
As previously stated, a motion to set aside a judgment is
addressed to the sound discretion of the trial court. Here, where the circumstances
indicated that the appellant's attorney appeared generally and waived his challenge to the
jurisdiction of the court, this Court does not believe that the trial judge abused his
discretion by refusing to set aside the judgment and award the appellant a new trial.
The judgment of the Circuit Court of Randolph County is,
therefore, affirmed.
Affirmed.
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