Samuel R. AMORUSO, Jr. d/b/a Quality Supplier Trucking, Inc., a West Virginia Corporation, Defendant Below, Petitioner v. COMMERCE AND INDUSTRY INSURANCE COMPANY, Plaintiff Below, Respondent

No. 17-1106

Supreme Court of Appeals of West Virginia.

Submitted: January 29, 2019 Filed: March 27, 2019

James E. Smith II, Esq., Keyser, West Virginia, Counsel for Petitioner

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 Respondent

WALKER, Chief Justice:

Commerce 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.

On 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.

**I. FACTUAL AND PROCEDURAL BACKGROUND**

In June 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.

In June 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[.]"1 Amoruso did not respond to the amended complaint.

*645In 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.

Amoruso's 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.2

During 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."

In 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 business practices.

**II. STANDARD OF REVIEW**

With respect to motions made under Rule 60(b) of the Rules of Civil Procedure to set aside a default judgment rendered under Rule 55 of the 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 showing of an abuse of discretion."3 However, we are mindful that there is a presumption in favor of adjudication of cases upon their merits.4

*646**III. DISCUSSION**

We begin by discussing the Rules of Civil Procedure involved in the proceedings below. First, Rule 55(c) provides that "[f]or good cause shown the court may set aside an entry of default and, if a judgment of default has been entered, may likewise set it aside in accordance with Rule 60(b)." And, Rule 60(b) outlines the grounds for relief and timing of a motion to set aside a judgment, providing in relevant part:

> *Mistakes; inadvertence; excusable neglect; unavoidable cause; newly discovered evidence; fraud, etc.* - 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) 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), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. ...

In *Parsons v. Consolidated Gas Supply Corp.* ,5 we identified four factors a trial court should consider under Rule 60(b) specific to the context of a motion to set aside a default judgment:

> 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.[6]

Subsequently, we clarified the interplay between "good cause" under Rule 55(c) and the requisite showing of a grounds for relief from a default judgment7 under Rule 60(b) as follows:

> [i]n 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.8

Turning to the facts before us, before we reach consideration of the *Parsons* factors, Amoruso must show that he is entitled to relief under one of the grounds enumerated in Rule 60(b). Below, in his motion to the circuit court, Amoruso specifically raised "mistake," "fraud," "misrepresentation," and "excusable neglect," and again used similar terms in his prayer for relief. His remaining allegations all centered upon the negligent or intentional actions of Commerce and Industry in pursuing the action against him in his personal capacity.

Undoubtedly, his stated grounds for relief below all fall within the parameters of Rule 60(b)(1) and 60(b)(3), both of which are subject to a one-year time limitation that had already expired. To the extent Amoruso argues that the inequities of this case demand relief, we note that *647Rule 6(b)(2) of the West Virginia Rules of Civil Procedure precludes enlargement of time for motions made under Rule 60(b) except to the extent and under the conditions stated in that rule. Under Rule 60(b), there is no provision for the extension of the one-year limitation on motions made under Rule 60(b)(1)-(3). For that reason, we find that the circuit court did not abuse its discretion in denying Amoruso's motion to set aside the default judgment as untimely for the grounds raised.

Although not argued below, Amoruso now attempts to repackage the allegations made to the circuit court as those seeking to set aside the default judgment as void for lack of personal jurisdiction under Rule 60(b)(4),9 which is not subject to the one-year restriction.10 The crux of Amoruso's argument is that the circuit court did not have personal jurisdiction over him because he was not the proper party in the action. Rather, he argues that his company, Q.S.I., Inc., was the proper party. While we disagree that Amoruso's allegations below can be characterized as such, the argument is nonetheless meritless because it fundamentally misapprehends the concept of personal jurisdiction.

We have held that " '[t]o 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.' "11 Rendering a default judgment in the absence of personal jurisdiction could give rise to setting aside that default judgment under Rule 60(b)(4). Amoruso argues that the circuit court lacked jurisdiction over him because he was not the proper entity to be sued, but that allegation is insufficient to preclude personal jurisdiction over him for two reasons.

First, Amoruso was properly served and appeared in the case. Having filed an answer with the court without objecting to jurisdiction, he consented to the circuit court's jurisdiction.12 Under Rule 12(h)(1) of the West Virginia Rules of Civil Procedure,

> [a] defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

Amoruso did not raise lack of jurisdiction in his answer to the original complaint, did not respond to the amended complaint,13 did not *648make a motion under Rule 12 for dismissal for lack of jurisdiction or insufficient service of process, and at no point in his participation in the case contended that the circuit court lacked personal jurisdiction.14 For those reasons, we find that Amoruso waived any challenge to the circuit court's personal jurisdiction.

Second, Amoruso's "personal jurisdiction" argument does not include any typical jurisdictional objections to the effect that he does not live in the state, has no minimum contacts with the state, or is otherwise not amenable to suit in West Virginia. Instead, Amoruso argues that he, in his personal capacity "d/b/a Quality Supplier Trucking, Inc.," is simply the wrong party to the action. His argument, then, is that that the circuit court was *wrong* , not that it lacked jurisdiction over Amoruso's person.15 The fact that Amoruso perceives the order as wrong does not render it void for the purposes of Rule 60(b)(4). As the federal courts have aptly found,16 " '[r]elief under Rule 60(b)(4) is not available merely because a disposition is erroneous.' ... 'Rather, before a judgment may be deemed void within the meaning of the rule, it must be determined that the rendering court was powerless to enter it.' "17 This distinction and the limitations of Rule 60(b)(4) are grounded in maintaining the sanctity of final judgments and preventing parties from invoking Rule 60(b)(4) as a substitute for a timely appeal.18 Accordingly, we hold that an 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.

As noted above, the circuit court was not powerless to enter a judgment against Amoruso for lack of personal jurisdiction, and Amoruso could have raised his contentions that he was not the appropriate party by asserting it as a defense or by moving to dismiss the case. Amoruso did neither, and the allegation that the judgment is erroneous because he is the improper party is insufficient to void the judgment under Rule 60(b)(4). For those reasons, even were we to find that the matter had been sufficiently raised below, we do not find that the judgment is void for lack of personal jurisdiction.19

*649Accordingly, we do not find that Amoruso has made a timely showing under Rule 60(b)(1) or 60(b)(3), nor do we find that the judgment was void under Rule 60(b)(4).20 Because Amoruso has not made a showing that a ground set out under Rule 60(b) has been satisfied, we need not reach the consideration of the *Parsons* factors in order to determine that the circuit court did not abuse its discretion in finding that there was no good cause to set aside the default judgment.

**IV. CONCLUSION**

For the foregoing reasons, we do not find that the circuit court abused its discretion in denying Amoruso's Motion to Set Aside the Default Judgment, and so affirm the November 17, 2017 order of the Circuit Court of Mineral County.

Affirmed.

JUSTICE WORKMAN and JUSTICE HUTCHISON dissent and reserve the right to file dissenting opinions.

1

*See* W. Va. R. Civ. P. 4(a).

2

Specifically, Amoruso contended that he had been in communications with both Commerce and Industry and its counsel that the dollar amount had been calculated incorrectly and that he himself was not the entity to be charged. He was of the opinion that the matter would ultimately be settled upon review of the records and a corrected calculation of what, if any, amount was due.

3

Syl. Pt. 6, *Games-Neely ex rel. W. Va. State Police v. Real Prop.* , 211 W. Va. 236, 565 S.E.2d 358 (2002) (quoting 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) ).

4

*Farm Family Mut. Ins. Co. v. Thorn Lumber Co.* , 202 W. Va. 69, 72, 501 S.E.2d 786 (1998).

5

163 W. Va. 464, 256 S.E.2d 758 (1979).

6

*Id.* at Syl. Pt. 3, in part.

7

*See**Hardwood Group v. Larocco* , 219 W. Va. 56, 62-63, 631 S.E.2d 614, 620-21 (2006) (distinguishing relevant considerations for relief from default as opposed to default judgment).

8

*Id.* at Syl. Pt. 5.

9

Although this Court has not enumerated the particular circumstances that may render a judgment void, federal courts interpreting Federal Rule of Civil Procedure 60(b)(4) generally hold that a judgment is void "if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law." Wright & Miller, 11 Fed. Prac. & Proc. § 2862 (3d ed.). *Accord,**United Student Aid Funds, Inc. v. Espinosa* , 559 U.S. 260, 271, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010) ("Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard."); *United States v. Boch Oldsmobile, Inc.* , 909 F.2d 657, 661-62 (1st Cir. 1990) ("A judgment is void, and therefore subject to relief under Rule 60(b)(4), *only* if the court that rendered judgment lacked jurisdiction *or* in circumstances in which the court's action amount to a plain usurpation of power constituting a violation of due process.") (emphasis in original).

10

We note that Mr. Amoruso in making his argument that the judgment is void under Rule 60(b)(4) has not provided a reason for his failure to answer the amended complaint despite his concession that it was duly served and contained the obligatory language that his failure to respond would result in a default judgment against him.

11

Syl. Pt. 1, *Leslie Equip. Co. v. Wood Res. Co., L.L.C.* , 224 W. Va. 530, 687 S.E.2d 109 (2009) (quoting Syl. Pt. 3, *State ex rel. Smith v. Bosworth* , 145 W. Va. 753, 117 S.E.2d 610 (1960) ).

12

*See* Syl. Pt. 4, *Blankenship v. Estep* , 201 W. Va. 261, 496 S.E.2d 211 (1997) (" 'Consent of parties cannot confer upon a court jurisdiction which the law does not confer, or confers upon some other court, although the parties may by consent submit themselves to the jurisdiction of the court. In other words, consent cannot confer jurisdiction of the subject-matter, but it may confer jurisdiction of the person.' Syllabus Point 2, *Yates et al. v. Taylor County Court* , 47 W. Va. 376, 35 S.E.24 (1900).").

13

*See supra* n.10.

14

*See**State ex rel. Ford Motor Co. v. McGraw* , 237 W. Va. 573, 788 S.E.2d 319 (2016) ("*When the objection to personal jurisdiction is timely made* , a defendant does not thereafter waive the defense by further participation.") (emphasis added).

15

*See* Syl. Pt. 2, in part, *Yates* , 47 W. Va. at 376, 35 S.E. at 24 ("In other words, consent cannot confer jurisdiction of the subject-matter, but it may confer jurisdiction of the person.").

16

Rule 60(b) of the West Virginia Rules of Civil Procedure contains the same pertinent language as its federal counterpart, including identical enumerated grounds for relief. We have explained that "[b]ecause the West Virginia Rules of Civil Procedure are patterned after the Federal Rules of Civil procedure, we often refer to interpretations of the Federal Rules when discussing our own rules. *See**Cattrell Companies, Inc. v. Carlton, Inc.* , 217 W. Va. 1, 8 n.21, 614 S.E.2d 1, 8 n.21 (2005) (" 'Because the West Virginia Rules of Civil Procedure are practically identical to the Federal Rules, we give substantial weight to federal cases ... in determining the meaning and scope of our rules.' ") (quoting *Painter v. Peavy* , 192 W. Va. 189, 192 n.6, 451 S.E.2d 755,758 n.6 (1994) ).

17

*Karsner v. Lothian* , 532 F.3d 876, 886 (D.C. Cir. 2008) (citations omitted). *Accord* , *Baumlin & Ernst, Ltd. v. Gemini, Ltd.* , 637 F.2d 238, 241 (4th Cir. 1980) ("There is, however, a substantial difference between a judgment which is erroneous and one which is altogether void[.]"); *V.T.A., Inc. v. Airco., Inc.* , 597 F.2d 220, 224 (10th Cir. 1979) ("A judgment is not void merely because it is or may be erroneous[.]"); *Lubben v. Selective Serv. Sys. Local Bd. No. 27* , 453 F.2d 645, 649 (1st Cir. 1972) ("A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect. In the interest of finality, the concept of void judgments is narrowly construed. ... Only in the rare instance of a clear usurpation of power will a judgment be rendered void.").

18

*See, e.g.* , *Wendt v. Leonard* , 431 F.3d 410, 412-13 (4th Cir. 2005) (cautioning that use of Rule 60(b)(4) intended only for truly void judgments and not as substitute for timely appeal of allegedly erroneous decisions).

19

Question was raised at oral argument as to whether it would be appropriate to set aside the default judgment against Mr. Amoruso as void for lack of notice of Commerce and Industry's Motion for Default Judgment using a plain error analysis. Consistent with Rule 55(b)(2), a party who has appeared in the action, as Mr. Amoruso has, is entitled to at least three days of notice before the hearing on an application for default judgment, and it does not appear affirmatively from the record on appeal that Amoruso did, in fact, receive notice.

However, Amoruso did not raise lack of notice to the circuit court, and we have deemed waived challenges under Rule 55(b)(2) that were raised for the first time on appeal. *See**Hartwell v. Marquez* , 201 W. Va. 433, 498 S.E.2d 1 (1997) ; *Bell v. West* , 168 W. Va. 391, 284 S.E.2d 885 (1981). Not only did Amoruso fail to raise lack of notice to the circuit court, he did not raise it to this Court, even after prompting during oral argument.

Moreover, we have held that "[t]he failure to provide a party against whom judgment of default is sought with notice of the application for judgment as required by Rule 55(b)(2) of the W. Va. Rules of Civil Procedure renders the subsequent default judgment *voidable* , but such judgment is not *void* ." Syl. Pt. 4, *Hartwell* , 201 W. Va. 433, 498 S.E.2d 1 (emphasis in original). Given that Amoruso has never argued that he did not receive notice under Rule 55(b)(2), the predicate facts of a lack of notice have not been conclusively established before this Court, and our precedent does not automatically render the judgment void even if no notice was had, we find it inappropriate to sua sponte set aside the default judgment on those grounds using a plain error analysis.

20

Because we agree with the circuit court that Amoruso's Motion to Set Aside the Default Judgment was untimely as a matter of law, we need not address Amoruso's contention that the circuit court was prejudiced toward him as evidenced by its comments relating to Amoruso's business practices.

WORKMAN, Justice, dissenting:

This Court " 'may, sua sponte, in the interest of justice, notice plain error.' Syl. Pt. 1, in part, *State v. Myers* , 204 W.Va. 449, 513 S.E.2d 676 (1998)." Syl. Pt. 1, *Cartwright v. McComas* , 223 W.Va. 161, 672 S.E.2d 297 (2008). The criteria for invoking the plain error doctrine are straightforward: "To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syl. Pt. 7, *State v. Miller* , 194 W.Va. 3, 459 S.E.2d 114 (1995). Accordingly, although plain error was not raised by the petitioner, Samuel Amoruso, Jr.,1 the facts and procedural history, as outlined below, demand its application in this instance. Indeed, it is the interest of justice and the duty of candor toward our courts that compel me to dissent in this matter.

The respondent, Commerce and Industry Insurance Company, issued a workers' compensation insurance policy to Q.S.I., Inc.2 On January 22, 2013, the respondent sent a "Legal Collections Notice" addressed to Q.S.I., Inc., demanding payment in the amount of $ 36,809 for a final audit premium. Presumably, Q.S.I., Inc. did not remit the premium payment because the respondent instituted a civil action in the circuit court seeking to recover that sum. Rather than suing Q.S.I., Inc., however, the respondent named "Samuel R. Amoruso, Jr. dba Quality Supplier Trucking, Inc." as the defendant and sought *650a judgment against him personally in the amount of $ 36,809.3

Mr. Amoruso, acting pro se, filed an answer in which he denied all allegations against him in the complaint, including the allegation that he personally owed any money to the respondent. In addition, he repeatedly communicated with the respondent and its counsel through which he advised that he was not the entity to be charged. Later, while still acting pro se, Mr. Amoruso answered the respondent's written discovery requests in which he again denied owing any money to the respondent and again tried to advance that the respondent had sued the wrong entity. Thereafter, the respondent filed an amended complaint in this same action, now claiming that Mr. Amoruso personally owed $ 64,255 in unpaid premiums.

When Mr. Amoruso did not file an answer to the amended complaint, the respondent represents that it filed a motion for default judgment against Mr. Amoruso in the circuit court. Interestingly, the copy of this motion in the appendix record is not stamped as having ever been filed in the circuit court, and it does not appear on the circuit court's docketing sheet, which lists all pleadings, documents, letters, etc., filed in the action.4 Setting aside the question of whether the motion was actually filed, there is no indication that Mr. Amoruso was ever served with a copy of this motion. There is certainly no certificate of service attached to the copy of the motion in the appendix record.5 Further, Mr. Amoruso was not copied on the respondent's January 16, 2016, cover letter to the circuit court clerk enclosing the motion for filing, although the circuit court judge was copied on the letter. The problems do not end here.

In the "Affidavit of Indebtedness" attached to the respondent's motion for default judgment, the respondent's affiant avers that $ 64,255 is "due to National Union"-not to the respondent. Consequently, even assuming the motion for default judgment and its supporting affidavits were filed in the circuit court, the only evidence was that the alleged debt was owed to "National Union," which is not a named party in this action. Perhaps more troubling is the "Affidavit for Entry of Default Judgment" signed by the respondent's counsel. In his affidavit, counsel states that Mr. Amoruso had "wholly failed to appear, plead or otherwise defend in this action[.]"6 As is readily evident from the procedural history summarized above, this statement was plainly false and served to mislead the circuit court.7

Notwithstanding these serious problems, the respondent's proposed order granting the motion and awarding a default judgment against Mr. Amoruso in the amount of $ 64,255 *651was signed by the circuit court judge on January 16, 2018, the date of the respondent's cover letter. This order was later filed in the circuit court's clerk's office on January 28, 2016. The circuit court's docketing sheet reflects that an abstract of the default judgment order was mailed to the respondent's counsel on March 10, 2016, at counsel's request. There is no indication that a copy of the order was ever mailed to Mr. Amoruso.

From the parties' briefing and the appendix record, it appears that Mr. Amoruso first learned that a default judgment had been entered against him when the respondent began its efforts to collect upon the judgment by serving a "Suggestion of Personal Property" upon Mr. Amoruso and the bank that held his accounts in May 2017, approximately fifteen months after entry of that judgment. Mr. Amoruso immediately retained counsel who, just two days later, filed a motion to set aside the default judgment under West Virginia Rule of Civil Procedure 60(b).8 Because more than a year had passed since entry of the default judgment before Mr. Amoruso learned of it, many of the bases for seeking to set aside a judgment under West Virginia Rule of Civil Procedure 60(b) were already untimely under that rule. It is of great concern that the respondent may have purposely delayed executing upon its dubious judgment solely to restrict Mr. Amoruso's avenues of relief, all the while its judgment accrued interest at the rate of seven percent per annum.9

The respondent is not the first party to gain an unfair advantage through its seemingly purposeful delay. In *Hartwell v. Marquez* , 201 W.Va. 433, 498 S.E.2d 1 (1997), this Court addressed counsel's more than eight-month delay in notifying an insurance carrier that default and monetary judgments had been entered against it. As this Court appropriately observed,

> [t]his delay was apparently calculated to limit Gallant's options under the provisions of W.Va. R. Civ. P. 60(b), which, with limited exceptions, requires that a motion to set aside a final judgment be filed not more than eight months after the entry of the judgment order.10 While there are no statutory or court rule provisions prohibiting such a delay, we strongly urge practitioners to adhere to the W. Va. Standards of Professional Conduct recently adopted by this Court. Standard I.B.9 states that "[a] lawyer should not cause any default or dismissal to be entered without first notifying opposing counsel, when the identity of such counsel is known."11

*Hartwell* , 201 W.Va. at 436 n.5, 498 S.E.2d at 4 n.5 (footnotes added). Although Mr. Amoruso's newly retained counsel did not cite the specific subsections of Rule 60(b) under which relief was being sought, his arguments suggested that he was seeking relief under the provisions that would invoke the one-year-time limitation under Rule 60(b).12 Because the Rule 60(b) motion was filed more than one year after the default judgment was entered, the circuit court denied the motion on the basis that it was untimely filed. *See* W.Va. R. Civ. P. 60(b), in part (providing that *652motions seeking relief under Rule 60(b)(1) and (3) must be filed "not more than one year after the judgment ... was entered[.]").

Regardless of the particular provisions that were relied upon in Mr. Amoruso's Rule 60(b) motion, there is no question that he was entitled to written notice that a motion for default judgment had been filed given his appearance and defense in the action. In fact, West Virginia Rule of Civil Procedure 55(b)(2) expressly provides that "[i]f the party against whom judgment by default is sought has appeared in the action, the party ... shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application."

We addressed the Rule 55(b)(2) notice requirement in *Daniels v. Hall's Motor Transit Co.* , 157 W.Va. 863, 205 S.E.2d 412 (1974), which involved a circuit court's denial of a motion to set aside a default judgment. The parties had entered into a stipulation, extending the time by which the defendants had to answer the complaint. When the defendants failed to file an answer within that stipulated time frame, the plaintiffs filed a motion for a default judgment but failed to provide notice of their motion to the defendants. Absent such notice and an opportunity to object, a default judgment was entered against the defendants in the precise amounts pled in the complaint. The circuit court denied the defendants' motion to set aside the default judgment, and the defendants appealed. In reversing the circuit court, this Court held that

> [w]here a party defendant files a written stipulation extending the time for filing an answer, or indicates interest in pending litigation against him by any other written matter of record in the court file signed by the party, his counsel, or his representative, the party 'has appeared' within the contemplation of Rule 55(b)(2), R.C.P. and is entitled to notice of an application for default judgment.

*Daniels* , 157 W.Va. at 863, 205 S.E.2d at 412, syllabus;13*see also* Syllabus, *Godbey v. Lanham* , 191 W.Va. 233, 445 S.E.2d 174 (1994) ("Where a defendant has answered a plaintiff's complaint, a default judgment under Rule 55(b)(2) of the Rules of Civil Procedure may not be obtained unless the defendant shall have been served with written notice of the application for judgment at least three days prior to the hearing on such application."). As this Court aptly and succinctly explained in *Daniels* , "[t]he purpose of this Rule [55(b)(2) ] is to provide a party defendant with a timely opportunity to urge reasons against entry of default judgment." *Daniels* , 157 W.Va. at 865, 205 S.E.2d at 413. In addition,

> [a] motion for judgment by default against the party who has ... appeared in the action but has not been served with written notice of the application for such judgment at least three days prior to the hearing as provided by Rule 55(b)(2) of the Rules of Civil Procedure should not be granted or such judgment entered by the court in the absence of service of such notice; and a judgment by default so entered by the court is erroneous and will be set aside upon appeal.

Syl. Pt. 3, in part, *Investors Loan Corp. v. Long* , 152 W.Va. 673, 166 S.E.2d 113 (1969). Because Mr. Amoruso did not learn of the default judgment until the respondent began executing upon it some fifteen months after it was entered, he was foreclosed from seeking relief through an appeal since the time for filing the same had long passed,14 just as the time period may have passed for seeking relief under Rule 60(b)(1) and (3).

Once the circuit court was reminded during the hearing held on the motion to set aside the default judgment of Mr. Amoruso's appearance and defense in the action, the *653circuit court should have recognized its error in having entered an order awarding a default judgment on the basis that Mr. Amoruso had "failed to appear, plead or otherwise defend this action." Further, because Mr. Amoruso was never provided with the requisite Rule 55(b)(2) notice of the respondent's motion for default judgment, he had no opportunity "to urge reasons against entry of default judgment." *Daniels* , 157 W.Va. at 865, 205 S.E.2d at 413. Inasmuch as the circuit court signed the order granting the default judgment on the same date that appears on the respondent's cover letter enclosing the motion, the court would have known that Mr. Amoruso did not have an opportunity to be heard. Perhaps the circuit court was blinded to this error given its preconceived opinion of Mr. Amoruso, which was revealed during the motion hearing when the circuit court stated: "what's out of line is your client [Mr. Amoruso] has spent his whole entire career creating these damn companies so he can hide behind money that he owes people." The circuit court would have been better served had it followed the long-standing principle that "[i]f any doubt exists as to whether relief should be granted, such doubt should be resolved in favor of setting aside the default judgment in order that the case may be heard on the merits." *McDaniel v. Romano* , 155 W.Va. 875, 878, 190 S.E.2d 8, 11 (1972).

Although the majority contends that Mr. Amoruso has waived this notice issue by not raising it below, "the raise or waive rule is not absolute." *State v. LaRock* , 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996) (citation omitted). Thus, a court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved. "To affect substantial rights means the error was prejudicial. It must have affected the outcome of the proceedings in the circuit court[.]" *Miller* , 194 W.Va. at 7, 459 S.E.2d at 118, syl. pt. 9, in part. Indisputably, this is precisely what happened here.15

Mr. Amoruso was clearly deprived of his substantial right to notice under Rule 55(b)(2), which resulted in a personal judgment against him in excess of $ 64,000 through the false representation that he had "wholly failed to appear, plead, or otherwise defend in this action." I am also troubled by the respondent's inability to explain why it instituted this action against Mr. Amoruso, personally, rather than the corporation with whom it had contracted, Q.S.I., Inc. This was an issue repeatedly raised by Mr. Amoruso below. When this Court sought an explanation in this regard during oral argument, the respondent's counsel evaded answering the question and, instead, cited the scope of appellate review.16 Lastly, I question the circuit court's entry of the default judgment when the respondent's affidavit filed in support of the motion indicated that the alleged debt was owed to "National Union," a non-party. In short, had Mr. Amoruso been provided with notice, he would have been afforded the opportunity to argue against the entry of default judgment on these and/or other bases, all of which warranted relief under Rule 60(b).

Based on the above, I firmly believe that the combination of these plain errors and obstreperous misrepresentations has seriously the fairness of the judicial process and Mr. Amoruso's substantial rights in this action. For these reasons, I respectfully dissent to the decision reached by the majority of the Court in this matter.

1

The plaintiff-insurer's motion for default judgment contains an affidavit where its lawyer says Mr. Amoruso had never served an "answer or notice of appearance," and says twice that he "ha[d] wholly failed to appear, plead or otherwise defend in this action." The lawyer says he signed the affidavit because of Mr. Amoruso's "failure to answer or otherwise appear or defend[.]" The circuit court's default judgment order, which was prepared by plaintiff's lawyer, also says Mr. Amoruso "ha[d] failed to appear, plead or otherwise defend in this action[.]"

2

A Rule 60(b)(4) motion must be made "within a reasonable time" after entry of the judgment, and is not constrained by the one-year limitation. "Courts have been exceedingly lenient in defining the term 'reasonable time,' with regard to voidness challenges. In fact, it has been oft-stated that, for all intents and purposes, a motion to vacate a default judgment as void 'may be made at any time.' 12 *Moore's Federal Practice* § 60.44[5][c]." *Beller & Keller v. Tyler* , 120 F.3d 21, 24 (2nd Cir. 1997). *See, e.g.* , *Crosby v. The Bradstreet Co.* , 312 F.2d 483, 485 (2nd Cir. 1963) (vacating judgment as void 30 years after entry).

3

"There is no theoretical limit to the possibilities that a judgment could be void because a court with jurisdiction over the subject matter and jurisdiction over the parties nonetheless 'has acted in a manner inconsistent with due process of law.' " 12 *Moore's Federal Practice* § 60.44[4] (3rd Ed. 2018). *See also**Oakes v. Horizon Fin., S.A.* , 259 F.3d 1315, 1318-19 (11th Cir. 2001) ("Rule 60(b)(4) of the Federal Rules of Civil Procedure provides that a court may relieve a party from an order or final judgment that is void. A judgment is 'void' under Rule 60(b)(4) if it was rendered without jurisdiction of the subject matter or the parties or in a manner inconsistent with due process of law."); *Broyhill Furniture Indus., Inc. v. Craftmaster Furniture Corp.* , 12 F.3d 1080, 1084 (Fed. Cir. 1993) ("[I]t is well established that a judgment is void for purposes of 60(b)(4) only when the court that rendered the judgment lacked jurisdiction or failed to act in accordance with due process of law."); *Schwartz v. United States* , 976 F.2d 213, 217 (4th Cir. 1992) ("A judgment is not void merely because it is erroneous. It is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law." (Quoting Wright and Miller)); *Wesco Prod. Co. v. Alloy Auto. Co.* , 880 F.2d 981, 984 (7th Cir. 1989) ("A void judgment for purposes of Rule 60(b)(4) is generally defined as a judgment entered by a court without jurisdiction or in contravention of due process of law."); *Bank of Hawaii v. Shinn* , 120 Hawai'i 1, 200 P.3d 370, 381 (2008) ("a judgment is void only if the court lacked subject matter jurisdiction, jurisdiction over the person, or violated due process"); *DeLuca v. DeLuca* , 839 A.2d 1237, 1241 (R.I. 2004) ("[A] void judgment or decision is one in which the court entering the judgment lacked jurisdiction over the matter or when the court's action violated a procedural requirement so substantial that it amounted to a plain usurpation of power constituting a violation of due process.); *Bode v. Minnesota Dep't of Nat. Res.* , 594 N.W.2d 257, 261 (Minn. Ct. App. 1999) ("A judgment is void if the issuing court lacked jurisdiction over the subject matter, lacked personal jurisdiction over the parties through a failure of service that has not been waived, or acted in a manner inconsistent with due process." (Quoting Wright and Miller)); *K&K Investments, Inc. v. McCoy* , 875 S.W.2d 593, 596 (Mo. Ct. App. 1994) ("Judgment is a 'void judgment' if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process." (Quoting Black's Law Dictionary 1574 (6th ed. 1990)).

4

A copy of the circuit court's docketing sheet is included in the appendix record.

5

As discussed, *infra* , Mr. Amoruso was entitled to notice of this motion under West Virginia Rule of Civil Procedure 55(b)(2). *See also* Syl., in part, *Daniels v. Hall's Motor Transit Co.* , 157 W.Va. 863, 205 S.E.2d 412 (1974) (finding that party who has indicated interest in pending litigation " 'has appeared' within the contemplation of Rule 55(b)(2), R.C.P. and is entitled to notice of an application for default judgment.").

6

Although Mr. Amoruso did not file an answer to the amended complaint, an amended complaint is not a new action. This case is one action, and both the complaint and the amended complaint bear the same civil action number.

7

The Preamble to the West Virginia Standards of Professional Conduct provides that "[l]awyers owe to opposing counsel, the parties, the courts and the court's staff a duty of courtesy, candor, honesty, diligence, fairness and cooperation."

8

*See* W.Va. R. Civ. P. 60(b), in part ("On 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; ... (3) fraud ..., misrepresentation, or other misconduct of an adverse party .... 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").

9

By the time the respondent began its efforts to execute upon its $ 64,255 judgment, the amount owed was $ 69,972.

10

Rule 60(b) was subsequently amended to provide for the one-year-time period. *See supra* note 8.

11

While Mr. Amoruso was self-represented at this juncture, his identity and location were known to the respondent's counsel, who could have provided him with notice.

12

It was asserted that the respondent either knew or should have known the proper entity to sue was Q.S.I., Inc. and, therefore, the respondent had misrepresented salient facts and perpetrated a fraud upon the circuit court, which would be Rule 60(b)(3), and that excusable neglect and unavoidable cause applied to the timing of the motion to set aside, which would be Rule 60(b)(1). *See supra* note 8.

13

There is no indication in *Daniels* that a hearing was held before entry of the default judgment. Thus, it does not appear that this Court has restricted the notice requirement in Rule 55(b)(2) to only those matters where a hearing must be held on unliquidated damages. Regardless, a hearing was warranted in the instant matter where (1) the respondent claimed the damages were liquidated; (2) Mr. Amoruso contested the amount of the alleged damages; and (3) the respondent's affiant averred that the "liquidated" damages were owed not to it, but to "National Union[,]" a non-party.

14

*See* W.Va. R.A.P. 5 ; W.Va. Code § 58-5-4.

15

I agree with the reasoning of Justice Hutchison in his dissenting opinion in this matter. It is clear that under the facts and circumstances of this case, the failure to provide Mr. Amoruso with the requisite notice under Rule 55(b)(2) denied him an opportunity to be heard, which is the essence of due process. Unquestionably, "[t]he most fundamental due process protections are notice and an opportunity to be heard." *State ex rel. Bd. of Educ. of Cty. of Putnam v. Beane* , 224 W.Va. 31, 35, 680 S.E.2d 46, 50 (2009).

16

Absent any explanation being offered, perhaps the respondent instituted this action as it did to facilitate reaching Mr. Amoruso's personal assets. Had the respondent sued Q.S.I., Inc., it could not have reached Mr. Amoruso's personal assets without first meeting the legal strictures for piercing Q.S.I., Inc.'s corporate veil.

Hutchison, Justice, dissenting:

The very first rule of the West Virginia Rules of Civil Procedure, Rule 1, is that all *654the other rules "shall be construed and administered to secure the just ... determination of every action." I respectfully dissent because the plaintiff insurance company in this case manipulated the Rules, snookered the circuit court into depriving the defendant of due process, and gained an unjust result.

The facts in this case are simple and obvious: the plaintiff, Commerce and Industry Insurance Company, deliberately sued the wrong defendant. There was no mistake. The plaintiff insurer had a contract to provide workers' compensation insurance to Q.S.I., Inc. Q.S.I. breached the contract and failed to pay $36,809.00 in premiums due. The plaintiff had invoices it claimed to have sent to Q.S.I. and that it claimed were unpaid. However, instead of suing the entity everyone agrees had some culpability, Q.S.I., the plaintiff's lawyer consciously chose to sue Samuel R. Amoruso, Jr., personally, and doing business as Quality Supplier Trucking.

Mr. Amoruso, acting *pro se* , answered the plaintiff-insurer's lawsuit and denied personally owing anything. He also denied he was "doing business as" Quality Supplier Trucking, and there is nothing in the record to show this entity either exists or is related to Q.S.I., Inc. When the plaintiff insurer served discovery, Mr. Amoruso didn't answer - until the plaintiff got an order from the circuit court compelling him to answer. Then he answered and again denied being liable on the insurance contract. Throughout this process, Mr. Amoruso repeatedly spoke with the plaintiff and the plaintiff's lawyer and said they had sued the wrong entity. Mr. Amoruso agreed that he was treasurer of the real debtor, Q.S.I., and apparently believed the insurer would act in good faith and would seek to charge Q.S.I. with whatever amounts were properly due on the insurance contract.

The plaintiff insurer, however, did not remove Mr. Amoruso from the case. Instead, it filed an amended complaint that did nothing more than change the amounts it claimed Mr. Amoruso owed on the breached contract, raising the debt from $ 36,809.00 to $ 64,255.00. Everyone agrees that Mr. Amoruso was served with the amended complaint but did not answer.

What irks me about his case is what the plaintiff insurer did next. Remember, Mr. Amoruso had appeared in this case, without a lawyer. He had answered the original complaint. He had answered discovery (after the insurer got an order from the judge compelling him to do so). He had spoken with both the insurer and its lawyer, and repeatedly told them they had sued the wrong party. Despite that, the plaintiff insurer filed its motion for default judgment claiming Mr. Amoruso *had never appeared in the case* .1 Moreover, there is nothing showing it formally served Mr. Amoruso with the motion, or informally sent him a letter or a note or a text message or simply made a phone call. The plaintiff insurer just snuck the motion into the circuit judge's office and promptly got a default judgment in return.

Rule 55(b)(2) of the Rules of Civil Procedure [1998] says (with emphasis added) that "[i]f the party against whom judgment by default is sought *has appeared in the action* , the party ... *shall* be served with written notice of the application for judgment[.]" The rule isn't vague. It says written notice "shall" be given if a party "has appeared in the action." The failure to provide written notice renders the subsequent default judgment easily voidable. Syllabus Point 4, *Hartwell v. Marquez* , 201 W.Va. 433, 498 S.E.2d 1 (1997). And for over four decades, this Court has said that an "appearance" can be nothing more than a "written matter of record in the court file signed by the party" that "indicates interest in pending litigation against him[.]" Syllabus, *Daniels v. Hall's Motor Transit Co.* , 157 W.Va. 863, 205 S.E.2d 412 (1974). An "appearance for purposes of Rule 55(b)(2) may consist only of letters or conversations[.]"

*655*Farm Family Mut. Ins. Co. v. Thorn Lumber Co.* , 202 W.Va. 69, 75 n.9, 501 S.E.2d 786, 792 n.9 (1998). Put simply, an " 'appearance' by an otherwise defaulting party may consist of any communication to an opposing party that demonstrates either an interest in the pending litigation, or actual notice of the litigation. The communication may be made in written or oral form." Syllabus Point 5, *Cales v. Wills* , 212 W.Va. 232, 569 S.E.2d 479 (2002). "This liberal construction of the term ['appearance'] allows for the resolution of litigation on its merits, not technical pleading rules." *Farm Family* , 202 W.Va. at 75 n.9, 501 S.E.2d at 792 n.9.

Rule 55 is clear that the plaintiff insurer *should* have given Mr. Amoruso notice of the default judgment motion; the record is clear that it did not. I'm willing to wager that the plaintiff insurer knew it was manipulating the Rules of Civil Procedure because of what it did once it got the judgment order. To set aside a default judgment under Rule 60, a party in default must usually act within one year of the day the judgment is entered. To keep Mr. Amoruso from challenging the judgment, the plaintiff insurer did nothing and sat on the judgment for some 16 months. The plaintiff got its judgment in January 2016 but waited until May 2017 to notify Mr. Amoruso. Two days after getting the notice, Mr. Amoruso had a lawyer move to set aside the default judgment.

The majority opinion correctly holds that the motion to set aside the default judgment - a motion that was drafted in two days - was not artfully drawn. The motion was not tidy but sought to set aside the judgment under Rule 60(b)(1) for "[m]istake, inadvertence, surprise, excusable neglect, or unavoidable cause" and (b)(3) for "fraud ..., misrepresentation or other misconduct[.]" Essentially, Mr. Amoruso claimed he was the wrong party to be sued, and that the plaintiff insurer chose to sue him personally either by mistake or by fraud. The problem is that Rule 60(b) requires motions on these two grounds be made within one year. Despite this absurd procedural result, the majority opinion is right.

My dissent, however, stems from an argument in Mr. Amoruso's appellate brief. On appeal, for the first time, Mr. Amoruso's lawyer argued that the default judgment is "void" under Rule 60(b)(4), and challenges to void judgments can be made at any time.2 Normally, this Court sidesteps arguments raised for the first time on appeal. Nevertheless, Mr. Amoruso compellingly argues that the way the default judgment order was entered in this case violated his due process rights and was, therefore, void - and on this point, I agree.

As the majority opinion notes in footnote 9, a judgment is void under Rule 60(b)(4)"if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or *if it acted in a manner inconsistent with due process of law* ." Charles Alan Wright, Arthur R. Miller, 11 Fed. Prac. & Proc. Civ. § 2862 (3rd ed. 2012) (emphasis added). " Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard." *United Student Aid Funds, Inc. v. Espinosa* , 559 U.S. 260, 271, 130 S.Ct. 1367 (2010).3

*656Stated simply, "[A] judgment may be set aside on voidness grounds under Rule 60(b)(4) for a violation of the due process clause of the Fifth [and Fourteenth] Amendment." *In re Ctr. Wholesale, Inc.* , 759 F.2d 1440, 1448 (9th Cir. 1985).

Moreover, a judgment is void if it was entered without the notice required by due process. The Supreme Court set forth the due process requirements for notice in *Mullane v. Central Hanover Bank & Trust Co.* , 339 U.S. 306, 314 (1950) :

> An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information ... and it must afford a reasonable time for those interested to make their appearance.

The constitutional notion of due process requires that a plaintiff "act diligently and take such steps in attempting to give the defendant actual notice of the proceeding as are reasonably practicable." *Carlson v. Bos* , 740 P.2d 1269, 1275 (Utah 1987). "The purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending 'hearing.' " *Memphis Light, Gas & Water Division v. Craft* , 436 U.S. 1, 14, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978). Thus, "[d]ue process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." *United Student Aid Funds* , 559 U.S. at 272, 130 S.Ct. 1367. The form of notice chosen satisfies this requirement only if it "is as reasonably calculated to reach the defendant as any other practicable alternative." *Carlson* , 740 P.2d at 1276.

After studying the law surrounding Rule 60(b)(4), I am persuaded that Mr. Amoruso's due process rights were violated by the plaintiff insurer in this case. The plaintiff knew Mr. Amoruso had participated in this case and answered discovery requests, and knew he was interested in the outcome of the case. Mr. Amoruso conversed with both the plaintiff and its lawyer. Despite that knowledge, the plaintiff slipped its default judgment motion before the circuit judge without giving Mr. Amoruso any notice or chance to respond. The plaintiff then sat on the default judgment for over a year, solely to deprive Mr. Amoruso of the right to challenge the judgment. "The fundamental requisite of due process of law is the opportunity to be heard. This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." *Mullane* , 339 U.S. at 314, 70 S.Ct. 652. Accord *State ex rel. Peck v. Goshorn* , 162 W.Va. 420, 422, 249 S.E.2d 765, 766 (1978). *See also* , *Price v. Wyeth Holdings Corp.* , 505 F.3d 624, 632 (7th Cir. 2007) (Setting aside default judgment as void, in part because "[w]here the moving party has been prevented from *657presenting the merits of his case by the conduct of which he complains, Rule 60(b) relief is most appropriate."); *Sonus Corp. v. Matsushita Elec. Indus. Co.* , 61 F.R.D. 644, 649 (D. Mass. 1974) ("Neither plaintiff nor its counsel was given any prior notice of the motion for judgment by default or the hearing thereon, therefore due process was denied plaintiff.")

"Using the Rules [of Civil Procedure] to the best advantage of one's client is good advocacy ... But where the net result of adhering to the letter of the Rules is to thwart rather than to promote justice, the court must be wary of their rigid application." *Byron v. Bleakley Transp. Co.* , 43 F.R.D. 413, 415-16 (S.D.N.Y. 1967). In an unusual case like this, courts should not strive to be kneecapped by the Rules. The Rules are supposed to be construed liberally to achieve justice, and that did not occur in this case.

I therefore respectfully dissent.

1

It is unclear whether Mr. Amoruso's middle initial is "R." or "L." In the complaint filed in the circuit court, the respondent used the middle initial "R." In the parties' briefs filed in this Court, they both use the initial "L."

2

A document contained in the appendix record reflects that Mr. Amoruso was the vice-president and treasurer of Q.S.I., Inc.

3

A person or company may not conduct business in West Virginia under an assumed name until the person or company files a "doing business as" trade registration. *See* W.Va. Code § 47-8-2 (2015 & Supp. 2018). A search of the West Virginia Secretary of State's website reveals the corporate registration for Quality Supplier Trucking, Inc., which lists "Samuel R. Amoruso, Jr." as an officer and a director. See W.Va. R. Evid. 201, in part ("The court may judicially notice a fact that is not subject to reasonable dispute because it: ... (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."). This same corporate registration also shows "No Records Found" for "DBAs[.]" Consequently, absent Mr. Amoruso registering as a "d/b/a," there is no legal basis for the respondent to have named him as "dba Quality Supplier Trucking, Inc." in this action, even assuming, *arguendo* , that Quality Supplier Trucking, Inc.-not Q.S.I., Inc.-was the corporate entity that allegedly owed a debt to the respondent.