IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2022 Term

_____________

No. 21-0332

_____________

RESOURCES LIMITED, LLC,

Defendant Below, Petitioner,

V.

NEW TRINITY COAL, INC.,

Plaintiff Below, Respondent.

________________________________________________

Appeal from the Circuit Court of Fayette County

The Honorable Paul M. Blake, Jr., Judge

Civil Action No. 21-C-12

REVERSED AND REMANDED

________________________________________________

Submitted: March 15, 2022

Filed: April 26, 2022

JUSTICE MOATS delivered the Opinion of the Court.

JUSTICE ALAN D. MOATS, sitting by temporary assignment.

Jace H. Goins

Christopher S. Etheredge

Steptoe & Johnson PLLC

Charleston, West Virginia

Attorneys for the Petitioner

Kirk Lightner

Lightner Law Offices PLCC

Scott Depot, West Virginia

Attorney for the Respondent

FILED

April 26, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “‘“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, 175 S.E.2d 452 (1970)[, overruled on other grounds by Cales v. 

Wills, 212 W. Va. 232, 569 S.E.2d 479 (2002)].’ Syllabus point 6, Games-Neely ex rel. 

West Virginia State Police v. Real Property, 211 W. Va. 236, 565 S.E.2d 358 (2002).” 

Syllabus point 1, Hardwood Group v. LaRocco, 219 W. Va. 56, 631 S.E.2d 614 (2006). 

2. “‘“Appellate review of the propriety of a default judgment focuses on 

the issue of whether the trial court abused its discretion in entering the default judgment.”

Syllabus point 3, Hinerman v. Levin, 172 W. Va. 777, 310 S.E.2d 843 (1983).’ Syllabus 

point 1, Cales v. Wills, 212 W. Va. 232, 569 S.E.2d 479 (2002).” Syllabus point 2, 

Hardwood Group v. LaRocco, 219 W. Va. 56, 631 S.E.2d 614 (2006). 

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 
ii

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). 

4. “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 ground set out under Rule 60(b) of the West Virginia Rules of Civil 

Procedure has been satisfied.” Syllabus point 5, Hardwood Group v. LaRocco, 219 W. Va. 

56, 631 S.E.2d 614 (2006). 
1

Moats, Justice:

Petitioner Resources Limited, LLC (“Resources Limited”) appeals from an 

order entered March 31, 2021, by the Circuit Court of Fayette County. The circuit court 

previously had entered a default judgment order against Resources Limited in favor of 

Respondent New Trinity Coal, Inc. (“New Trinity”). Immediately following the entry of 

the default judgment order, Resources Limited filed its answer and affirmative defenses 

and a motion pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure to set 

aside the default judgment. By its March 31, 2021 order, the circuit court denied the motion 

to set aside the default judgment. On appeal, Resources Limited asserts that the circuit 

court incorrectly applied the factors set out in Parsons Consolidated Gas Supply Corp., 

163 W. Va. 464, 256 S.E.2d 758 (1979), which will be more fully discussed infra, and 

failed to appropriately consider whether Resources Limited’s conduct in failing to timely 

respond to the complaint was excusable.

Upon thorough review of the record, and upon careful consideration of the 

parties’ briefs and oral arguments and the relevant law, we agree with Resources Limited 

that the circuit court erred in denying its motion to set aside the default judgment. 

Accordingly, we reverse the circuit court’s March 31, 2021 order denying Resources 

Limited’s motion to set aside the default judgment and remand for further proceedings 

consistent with this opinion. 
2

I.

FACTUAL AND PROCEDURAL HISTORY

On February 12, 2021, New Trinity filed a complaint in the Circuit Court of 

Fayette County asserting claims of breach of contract and unjust enrichment against 

Resources Limited arising from a contract agreement between the parties. According to 

the complaint, Resources Limited and New Trinity entered a contract where Resources 

Limited agreed to mine coal on property owned by New Trinity in Fayette County, West 

Virginia. New Trinity asserted that at the time of filing the complaint, Resources Limited 

owed it $1,271,216.29 which contention it supported with an affidavit signed by New 

Trinity’s chief financial officer. Additionally, New Trinity contended that it had “perfected 

a lien on [Resources Limited’s] equipment to protect the substantial sums of money 

advanced to [Resources Limited] that had not been repaid in case the contract would 

ultimately be terminated.” 

Pursuant to the West Virginia Rules of Civil Procedure, New Trinity attached 

a civil case information statement to the complaint. The civil case information statement

indicated that service was to be completed by the Secretary of State’s Office and that 

Resources Limited would have thirty days from the date of such service to file its 

responsive pleading. According to New Trinity, Resources Limited received a copy of the 

complaint in three different ways: (1) by electronic mail on February 12, 2021; (2) by 

certified mail on February 17, 2021; and (3) by service on the Secretary of State’s Office, 

perfected on February 22, 2021.
3

On March 23, 20211

, New Trinity filed a motion for default judgment 

pursuant to Rule 552 of the West Virginia Rules of Civil Procedure maintaining that it had 

1 March 23, 2021, was thirty-four days from February 17, 2021, the date 

Resources Limited received service via certified mail, and twenty-nine days from February 

22, 2021, the date Resources Limited received service through the Secretary of State’s

Office. 

2 Rule 55(b) provides that 

(b) Judgment. — Judgment by default may be entered as 

follows:

(1) By the clerk. — When the plaintiff’s claim against a 

defendant is for a sum certain or for a sum which can by 

computation be made certain, the court upon request of the 

plaintiff and upon affidavit of the amount due shall direct the 

entry of judgment by the clerk for that amount and costs against 

the defendant, if the defendant has been defaulted for failure to 

appear and is not an infant, incompetent person, or convict.

(2) By the court. — In all other cases the party entitled to a 

judgment by default shall apply to the court therefor; but no 

judgment by default shall be entered against an infant, 

incompetent person, or convict unless represented in the action 

by a guardian, guardian ad litem, committee, conservator, 

curator[,] or other representative who has appeared therein. If 

the party against whom judgment by default is sought has 

appeared in the action, the party (or, if appearing by 

representative, the party’s representative) shall be served with 

written notice of the application for judgment at least 3 days 

prior to the hearing on such application. If, in order to enable 

the court to enter judgment or to carry it into effect, it is 

necessary to take an account or to determine the amount of 

damages or to establish the truth of any averment by evidence 

or to make an investigation of any other matter, the court may 

conduct such hearings or order such references as it deems 

necessary.

W. Va. R. Civ. P. 55.
4

served Resources Limited on February 17, 2021, via certified mail and again on February 

22, 2021, via the Secretary of State’s Office. New Trinity further asserted that as of March 

23, 2021, Resources Limited had filed no responsive pleading and made no appearance in 

the matter. The very next day, on March 24, 2021, the circuit court granted the motion for 

default judgment. In its order, the circuit court directed the circuit clerk to enter an order 

awarding New Trinity “the sum certain set forth in [the c]omplaint” and directed the sheriff 

to seize mining equipment referenced in the complaint in which New Trinity claimed to 

have a secured financial interest. On the same day, the circuit court entered a separate 

order directing that New Trinity “be given immediate possession of the secured collateral” 

referenced in the complaint and, again, directing the sheriff to retrieve the collateral. 

Shortly thereafter, on March 26, 2021, pursuant to Rule 60(b) of the West 

Virginia Rules of Civil Procedure, Resources Limited filed a motion to set aside the default 

judgment. Resources Limited argued that the civil case information statement filed by

New Trinity along with its complaint specifically stated that service would be perfected 

through the Secretary of State’s Office, and Resources Limited, therefore, “believed that 

[it] had been served on February 22, 2021.” Additionally, counsel for Resources Limited 

stated that when it discussed this complaint with the president of Resources Limited, David 

Huffman, he indicated that “he had not been served personally and was not aware of 

receiving service of process through any other method.” Furthermore, Resources Limited 

denied that its president had signed the return receipt for the certified mail containing a 

copy of the complaint. Resources Limited maintained that it had served its answer and 
5

affirmative defenses by certified mail on March 24, 2021.3

 Finally, Resources Limited 

argued that it should be granted relief because (1) New Trinity would not be prejudiced by 

the continuation of the action; (2) several of the material facts alleged by New Trinity were 

disputed and meritorious defenses existed; (3) a judgment of $1.2 million is a significant 

interest at stake; (4) there was no intransigence; and (5) excusable neglect existed. New 

Trinity opposed the motion. 

The circuit court conducted a hearing on the motion to set aside default 

judgment on March 30, 2021. During the hearing, the circuit court stated that New Trinity 

suffered “extreme” prejudice because Resources Limited had control and use of equipment 

that was secured by New Trinity. It also found “based upon all pleadings in this matter - -

it appears that there are really no material issues of fact or meritorious defenses.” The 

circuit court concluded that there was a significant interest in this matter. In addition, the 

circuit court decided that the failure to answer the complaint in a timely fashion was a 

stalling tactic and not for any valid reason. The circuit court then summarily found that 

there was no evidence of excusable neglect. 

Following the hearing, on March 31, 2021, the circuit court entered its order 

denying Resources Limited’s motion to set aside the default judgment. In its order, the 

3 This was thirty days from the date of service by the Secretary of State’s 

Office. The answer and affirmative defenses were not received by the circuit clerk’s office 

until March 26, 2021.
6

circuit court explained that there are five factors that the court can consider in setting aside 

a default judgment and concluded that New Trinity 

ha[d] suffered an extreme prejudice by [Resources Limited’s] 

actions and/or inactions in this matter. In support of this 

conclusion, the [c]ourt notes that [New Trinity] has a secured 

interest in the equipment owned (and still operated) by 

[Resources Limited]. Every day that [Resources Limited] is 

permitted to continue operating this equipment, and profiting 

from this work, [New Trinity] is prejudiced. Every day that 

this equipment is used, the value of said equipment diminishes. 

[New Trinity] has been owed substantial sums of money for 

almost two years now, and [Resources Limited] continues to 

operate its business to [New Trinity’s] detriment.

Moreover, the circuit court ordered the “previously entered default judgment remain in 

place” and that Resources Limited “be forced to immediately idle its equipment, so [New 

Trinity] is not additionally financially damaged.” 

 

Subsequently, on April 14, 2021, New Trinity filed an emergency motion to 

enforce compliance with the circuit court’s order denying the motion to set aside the default 

judgment. Through its motion, New Trinity asserted that it had spoken with counsel for 

Resources Limited several times “in an attempt to agree on a repayment plan whereby 

[New Trinity] would agree to not seize the equipment it has a lawful right to seize.” New 

Trinity further argued that Resources Limited had failed to confirm that the equipment was 

idled and provide the physical location of each item of equipment. As a result, New Trinity 

requested the circuit court to order (1) Resources Limited’s compliance with the default 

judgment order; (2) that Resources Limited confirm the equipment is idled; (3) that 

Resources Limited provide the specific location for all secured equipment; and (4) an
7

award of pre-judgment interest, post-judgment interest, and attorney’s fees. Two days later 

the circuit court held a hearing and granted the motion, directed Resources Limited to 

comply, and found that Resources Limited’s actions/inactions had been “contumacious” 

throughout the proceeding. 

Thereafter, on April 19, 2021, Resources Limited filed a Chapter 11 

bankruptcy petition in the United States Bankruptcy Court for the Southern District of West 

Virginia. The same day, Resources Limited filed with the circuit court a suggestion of 

bankruptcy which notified the circuit court of the bankruptcy filing and suggested that the 

circuit court action had been stayed by the operation of Title 11 U.S.C. §362. Resources 

Limited then filed the instant appeal from the circuit court’s March 31, 2021 order denying 

its motion to set aside the default judgment. During the pendency of this appeal, on 

February 23, 2022, this Court received an order from the bankruptcy court indicating that 

this current appeal is exempted from the automatic stay.

II.

STANDARD OF REVIEW

With respect to motions made pursuant to Rule 60(b) of the West Virginia 

Rules of Civil Procedure to set aside a default judgment rendered pursuant to Rule 55 of 

the West Virginia Rules of Civil Procedure, we have held that 

“‘[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 
8

showing of an abuse of discretion.’ Syl. Pt. 3, Intercity Realty 

Co. v. Gibson, 154 W. Va. 369, 175 S.E.2d 452 (1970)[, 

overruled on other grounds by Cales v. Wills, 212 W. Va. 232, 

569 S.E.2d 479 (2002)].” Syllabus point 6, Games-Neely ex 

rel. West Virginia State Police v. Real Property, 211 W. Va. 

236, 565 S.E.2d 358 (2002).

Syl. pt. 1, Hardwood Grp. v. LaRocco, 219 W. Va. 56, 631 S.E.2d 614 (2006). 

Furthermore, 

“‘[a]ppellate review of the propriety of a default 

judgment focuses on the issue of whether the trial court abused 

its discretion in entering the default judgment.’ Syllabus point 

3, Hinerman v. Levin, 172 W. Va. 777, 310 S.E.2d 843 

(1983).” Syllabus point 1, Cales v. Wills, 212 W. Va. 232, 569 

S.E.2d 479 (2002).

Syl. pt. 2, Hardwood, 219 W. Va. 56, 631 S.E.2d 614. However, we are mindful that there 

is also a presumption in favor of adjudication of cases upon their merits. See generally

Farm Family Mut. Ins. Co. v. Thorn Lumber Co., 202 W. Va. 69, 72, 501 S.E.2d 786, 790

(1998). With these considerations in mind, we examine the parties’ arguments. 

III.

DISCUSSION

Resources Limited raises a single assignment of error on appeal: the circuit 

court erred in denying Resources Limited’s motion to set aside the default judgment 

because it incorrectly applied the Parsons factors and failed to appropriately consider 

whether Resources Limited’s conduct was excusable. In general, Resources Limited 

argues that the circuit court abused its discretion in denying Resources Limited’s motion

to set aside the default judgment because the circuit court “failed to consider all of the 
9

factors which this Court has admonished trial courts to consider when ruling on a motion 

filed under Rule 60(b) of the West Virginia Rules of Civil Procedure, inappropriately 

weighed the factors it did consider, and considered improper factors when reaching its 

conclusion.” We agree. 

This Court’s law on whether to vacate a default judgment is well-established. 

We previously have held that 

[i]n 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.

Syl. pt. 3, in part, Parsons v. Consol. Gas Supply Corp., 163 W. Va. 464, 256 S.E.2d 758 

(1979). This Court further explained in Hardwood what a defendant is required to 

demonstrate when moving a circuit court to set aside a default judgment:

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 ground set out under Rule 60(b) of 

the West Virginia Rules of Civil Procedure has been satisfied. 

Syl. pt. 5, Hardwood, 219 W. Va. 56, 631 S.E.2d 614. Accordingly, we stated, “[i]n 

summary, the Parsons factors and excusable neglect, or any other relevant factor under 
10

Rule 60(b)4

, constitute ‘good cause’ for setting aside a default judgment.” Hardwood, 219 

W. Va. at 63, 631 S.E.2d at 621 (footnote added). Additionally,

[i]n determining the discretion issue, we have 

established as a basic policy that cases should be decided on 

their merits, and consequently default judgments are not 

favored and a liberal construction should be accorded a Rule 

60(b) motion to vacate a default order. See Syllabus Point 2 of 

Parsons v. McCoy, 157 W. Va.183, 202 S.E.2d 632 (1973), 

and Hamilton Watch Co. v. Atlas Container, Inc., [156 W. Va. 

52, 190 S.E.2d 779 (1972)].

Parsons, 163 W. Va. at 471, 256 S.E.2d at 762. See also Carpenter v. Walker, No. 18-

0683, 2020 WL 2735564, at *3 (W. Va. May 26, 2020)(memorandum decision) (“It is 

settled law in West Virginia that a case should ordinarily be disposed of on its merits. As

we stated in State ex rel. Richmond American Homes of West Virginia, Inc. v. Sanders, 226 

W. Va. 103, 113, 697 S.E.2d 139, 149 (2010), ‘the sanction of default judgment “should 

be used sparingly and only in extreme situations [in order to effectuate] the policy of the 

law favoring the disposition of cases on their merits.”’ (quoting Bell v. Inland Mut. Ins. 

Co., 175 W. Va. 165, 172, 332 S.E.2d 127, 134 (1985)).”). 

With these guiding principles in mind, we analyze the instant case with 

respect to the Parsons and Hardwood factors.

4 Pursuant to Rule 60(b)(1), a defaulting party may show good cause on the 

basis of “[m]istake, inadvertence, surprise, excusable neglect, or unavoidable cause[.]” 
11

1. The degree of prejudice. We previously have explained that “[t]he 

initial inquiry is the degree of prejudice to [the plaintiff] if the default judgment is vacated.” 

Hardwood, 219 W. Va. at 64, 631 S.E.2d at 622. Specifically, in examining the prejudice 

factor, this Court has stated that 

[w]hen discussing the West Virginia Rules of Civil 

Procedure this Court often refers to, but does not consider 

binding, interpretations of the Federal Rules. . . . Federal 

courts have ruled that prejudice occurs when circumstances 

have changed since the entry of the default judgment which 

impairs the plaintiff’s ability to prosecute its claim. On the 

other hand, federal courts have said that

. . . the fact that the plaintiff would have to try 

the case on the merits if relief is granted is not 

the kind of prejudice that should preclude relief. 

Similarly, the fact that reopening the judgment 

would delay plaintiff’s possible recovery has not, 

in itself, been deemed to bar relief.

10A Fed. Prac. & Proc. § 2699 (Civ. 3d. 1998). Also, the fact 

that a party may be required to undergo the expense of 

preparing and conducting a trial on the merits is an insufficient 

basis for denying relief from default. Furthermore, we believe 

the authority granted West Virginia trial courts under Rule 

60(b) when granting relief from a default judgment to impose 

“. . . such terms as are just . . .” provides courts with the power 

to minimize the effect upon the non-defaulting party when 

ordering relief from default judgments. We find these 

principles consistent with our jurisprudence and applicable to 

the instant case.

Groves v. Roy G. Hildreth & Son, Inc., 222 W. Va. 309, 315-16, 664 S.E.2d 531, 537-38 

(2008) (per curiam) (citation omitted).
12

In the matter sub judice, Resources Limited asserts that the circuit court 

abused its discretion regarding this factor because the circuit court misinterpreted it as 

allowing prejudice to result from New Trinity being compelled to litigate its claims. In its 

order, the circuit court found that New Trinity had suffered “extreme prejudice” because it 

had a secured interest in equipment owned and operated by Resources Limited and that 

every day the equipment is used, the value diminishes. 

There is nothing in the circuit court’s analysis that identifies any prejudice 

that New Trinity would experience as a result of the reinstatement of the case. In 

particular, there is no suggestion that any evidence or witness testimony would be lost if 

the default judgment is vacated. See, e.g., Cook v. Channel One, Inc., 209 W. Va. 432, 549 

S.E.2d 306 (2001) (per curiam) (finding no prejudice). See also Cales v. Wills, 212 W. Va. 

232, 242, 569 S.E.2d 479, 489 (2002) (“All that Mr. Cales has shown is that setting aside 

the judgment of default as to liability would mean further delay in obtaining full 

compensation for his injuries. There has been no suggestion by Mr. Cales that evidence or 

witness testimony would be lost.”). In other words, the record is devoid of any indication 

that circumstances have changed since the entry of the default judgment which would 

impair New Trinity’s ability to prosecute its claims on the merits.5

 As such, this factor 

favors Resources Limited’s request to set aside the default judgment. 

5 The circuit court also relied on the potential equipment harm, which is 

misplaced because Resources Limited denies that any such valid security interest exists,

and the only evidence New Trinity has produced is an unsigned UCC financing statement. 

West Virginia Code § 46-9-203(a) (eff. 2006) provides that “[a] security interest attaches 
13

2. The presence of material issues of fact and meritorious defenses. 

This Court has said that 

[w]e are guided by the explanation that this factor focuses on 

whether “‘there is . . . reason to believe that a result different 

from the one obtained would have followed from a full trial.’

Hinerman v. Levin, 172 W. Va. 777, 783-84, 310 S.E.2d 843, 

850 (1983).” Cales, 212 W. Va. at 242, 569 S.E.2d at 489. 

to collateral when it becomes enforceable against the debtor with respect to the collateral, 

unless an agreement expressly postpones the time of attachment.” West Virginia Code § 

46-9-203(b) (eff. 2006) explains when a security interest is enforceable:

(b) Enforceability. Except as otherwise provided in 

subsections (c) through (i), inclusive, of this section, a security 

interest is enforceable against the debtor and third parties with 

respect to the collateral only if:

(1) Value has been given;

(2) The debtor has rights in the collateral or the power 

to transfer rights in the collateral to a secured party; and

(3) One of the following conditions is met:

(A) The debtor has authenticated a security agreement 

that provides a description of the collateral and, if the security 

interest covers timber to be cut, a description of the land 

concerned;

(B) The collateral is not a certificated security and is in 

the possession of the secured party under section 9-313 [§ 46-

9-313] pursuant to the debtor’s security agreement;

(C) The collateral is a certificated security in registered 

form and the security certificate has been delivered to the 

secured party under section 8-301 [§46-8-301] pursuant to the 

debtor’s security agreement; or

(D) The collateral is deposit accounts, electronic chattel 

paper, investment property letter-of-credit rights, or electronic 

documents, and the secured party has control under section 7-

106 [§ 46-7-106], 9-104 [§ 46-9-104], 9-105 [§ 46-9-105], 9-

106 [§ 46-9-106,] or 9-107 [§ 46-9-107] pursuant to the 

debtor’s security agreement.
14

Hardwood, 219 W. Va. at 64, 631 S.E.2d at 622. We have had the opportunity to examine 

this factor on multiple occasions. For example, in Cook, this Court found that 

[i]n essence, CLC’s defense denies liability and therefore 

disputes material allegations in Ms. Cook’s complaint. In 

Parsons we determined that when a defendant “disputes the 

material allegations of the plaintiff’s complaint, and its defense 

is essentially that it is not liable[,] [t]he requirement of a 

meritorious defense exists.” Parsons, 163 W. Va. at 474, 256 

S.E.2d at 763. We therefore find that CLC has satisfied 

Parsons’ second factor.

Id., 209 W. Va. at 436, 549 S.E.2d at 310 (footnote omitted). Similarly, in Cales, we

explained that

[a]lthough we make no comment on whether National 

could prevail on its two primary defenses, the defenses do 

satisfy Parsons’ second requirement. See, e.g., State ex rel. 

United Mine Workers of Am., Local Union 1938 v. Waters, 200 

W. Va. 289, 299, 489 S.E.2d 266, 276 (1997) (“There is no 

reason to conclude at this juncture that the petitioners’ defenses 

are not meritorious.”).

Id., 212 W. Va. at 242, 569 S.E.2d at 489.

Here, the circuit court did not specifically address this factor in its written 

order; however, during the hearing, the court summarily disposed of the issue by finding 

that “based upon all the pleadings in this matter - - it appears that there are really no material 

issues of fact or meritorious defenses. This appears to be a stalling tactic on behalf of 

[Resources Limited].” However, in its answer, Resources Limited explicitly denied 

numerous factual assertions from New Trinity’s complaint and denied most of the 
15

substantive claims as well.

6

 Moreover, Resources Limited asserted ten affirmative 

defenses. While we make no specific findings with respect to whether Resources Limited 

will ultimately succeed with respect to any of its asserted defenses, Resources Limited has 

satisfied this factor. 

3. The significance of the interests at stake. The amount of the default 

judgment in the underlying matter was approximately $1.2 million. “The award of such a 

large amount of damages on a default judgment must be seriously and carefully 

considered.” State ex rel. Monster Tree Serv., Inc. v. Cramer, 244 W. Va. 355, 368, 853 

S.E.2d 595, 608 (2020). When previously examining this factor, we have found

substantially lesser amounts to be significant. See Groves, 222 W. Va. at 316, 664 S.E.2d 

at 538 (“The default judgment was in the amount of $704,000.00. We consider a judgment 

6 For instance, Resources Limited denies (1) that New Trinity agreed to 

advance substantial sums of money to Resources Limited in order to capitalize the work to 

be performed by Resources Limited; (2) that pursuant to the contract, $1.00 per ton would 

be withheld for reclamation; however, New Trinity did not withhold this amount from the 

Resources Limited’s payments, making the same due and owing to New Trinity upon 

termination of the contract; (3) that Resources Limited continued to mine coal pursuant to 

the contract terms until approximately June 1, 2019, at which time the parties agreed to 

terminate the contract due to Resources Limited being unable to mine the tonnage specified 

in the contract; (4) that from approximately February 1, 2018, to June 1, 2019, Resources 

Limited invoiced New Trinity for work performed and New Trinity paid Resources 

Limited (and advanced additional funds) for the work performed; (5) that prior to the 

contact being terminated pursuant to the agreement of the parties, New Trinity, in early 

February of 2019, perfected a lien on Resources Limited’s equipment to protect the 

substantial sums of money advanced to Resources Limited that had not been repaid in case 

the contract would be terminated; (6) that Resources Limited has refused to pay the monies 

owed, and has ceased communications with New Trinity’s counsel; and (7) that the amount 

of $1,271,216.29 remains due and owing.
16

in this amount to be significant[.]”). See also Arbuckle v. Smith, No. 17-0239, 2018 WL 

1444288, at *4 (W. Va. Mar. 23, 2018)(memorandum decision) (finding a default judgment 

in the amount of $51,423.95 “constitute[s] a significant amount”); Parsons, 163 W. Va. at 

473, 256 S.E.2d at 763 (finding that “monetary damages in the amount of $35,000 . . . is 

not an insignificant claim”). 

While the circuit court did not specifically address this factor in its written 

order, during the hearing the circuit court acknowledged that there was a significant interest 

at stake in this matter. Despite this acknowledgment, the court weighed this factor in favor 

of New Trinity because this “large amount of money [] is owed by [Resources Limited] for 

this particular equipment that [New Trinity] has an interest in[.]” We agree with the circuit 

court that the amount at issue is significant, but we find that the circuit court clearly misweighed this factor in favor of New Trinity. 

4. Degree of intransigence by the defaulting party. We have said that 

“any evidence of intransigence on the part of a defaulting party should be weighed heavily 

against him in determining the propriety of a default judgment.” Hinerman, 172 W. Va. at 

782, 310 S.E.2d at 849. In State ex rel. United Mine Workers of America, Local Union 

1938 v. Waters, 200 W. Va. 289, 299, 489 S.E.2d 266, 276 (1997), this Court reasoned that 

the petitioners were not intransigent because 

[t]hey advanced colorable good-faith reasons for not filing 

their answer and counterclaim and defensive motions prior to 

the default judgment’s entry. The petitioners acted in a timely 
17

fashion (eleven days from the default judgment’s issuance) to 

seek relief from the default judgment. In Evans v. Holt, 93 

W. Va. at 587, 457 S.E.2d at 524, a period of one month to file 

a motion to set aside a default judgment after learning of it was 

held to be reasonable. 

In the matter sub judice, again, the circuit court did not specifically address 

this factor in its written order; however, during the hearing, the circuit court stated that 

“there doesn’t appear to be any good reason why . . . [Resources Limited] did not attend to 

this matter on an earlier basis.” We disagree. There appears to be very little, if any, 

intransigence by Resources Limited in responding to the complaint. At the very most, 

Resources Limited was fifteen days late in serving its answer to the complaint.

7

 Moreover, 

Resources Limited filed its motion to vacate within forty-eight hours of the entry of the 

order awarding default judgment. Thus, the intransigence factor also weighs in favor of 

Resources Limited.

5. Rule 60(b) ground. Lastly, “[t]he final consideration under Parsons

is whether [the defendant] satisfied a ground under Rule 60(b).” Hardwood, 219 W. Va. 

at 65, 631 S.E.2d at 623. Rule 60(b) provides, in relevant part, as follows:

On motion and upon such terms as are just, the court may 

relieve a party or a party’s legal representative from a final 

judgment, order, or proceeding for the following reasons: (1) 

7 As discussed herein, there is some discrepancy as to when Resources 

Limited was served with the complaint. However, it does not matter whether Resources 

Limited was fifteen days late or timely in serving its answer and affirmative defenses. 

Either way, there was little to no delay in filing the responsive pleading. 
18

Mistake, inadvertence, surprise, excusable neglect, or 

unavoidable cause . . . . The motion shall be made within a 

reasonable time, and for reasons (1), (2), and (3) not more than 

one year after the judgment, order, or proceeding was entered 

or taken. A motion under this subdivision (b) does not affect 

the finality of a judgment or suspend its operation. This rule 

does not limit the power of a court to entertain an independent 

action to relieve a party from a judgment, order or proceeding, 

or to grant statutory relief in the same action to a defendant not 

served with a summons in that action, or to set aside a judgment 

for fraud upon the court.

W. Va. R. Civ. P. 60. Both in the underlying proceedings and on appeal, Resources 

Limited asserts that it has demonstrated inadvertence, mistake, and excusable neglect 

thereby satisfying a ground under Rule 60(b). During the hearing, the circuit court simply 

stated that it “d[id] not find [the] existence of excusable neglect in this matter.” 

The civil case information statement attached to the complaint indicated that 

service would be accomplished through the Secretary of State and that Resources Limited 

must respond within thirty days from the date service was perfected upon the Secretary of 

State’s office. Counsel for Resources Limited averred that he continuously reviewed the 

Secretary of State’s service of process status page until he found that service had occurred 

on February 22, 2021. In accordance with that notice and subsequent website posting, that 

service date is the one used by Resources Limited to calculate the time within which it was 

required to file its answer and affirmative defenses. Under these circumstances, we find 

that Resources Limited has demonstrated inadvertence, mistake, and excusable neglect 

thereby satisfying a ground under Rule 60(b). 
19

6. Weighing the Parsons and Hardwood factors. As discussed herein, 

the record does not support a finding that undue prejudice would result against New Trinity 

by setting aside the default judgment. Furthermore, Resources Limited has asserted 

material issues of fact and defenses which may have merit, and that the interests at stake 

are significant. Moreover, we find that there was little, if any, intransigence on the part of 

Resources Limited and that under Rule 60(b), Resources Limited has provided sufficient 

reasons to satisfy that ground. Thus, in weighing the Parsons and Hardwood factors, 

Resources Limited’s motion to set aside the default judgment should have been granted, 

and, therefore, reversal is justified. 

IV.

CONCLUSION

For the foregoing reasons, we find that the circuit court abused its discretion 

in denying Resources Limited’s motion to set aside the default judgment. Therefore, the 

default judgment is reversed, and the case is remanded for further proceedings consistent 

with this opinion.8

 

Reversed and remanded.

8 On remand, we remind the circuit court to be cognizant of any automatic 

stay that may still be in place pursuant to Title 11 U.S.C. §362.