### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED Douglas Arbuckle, Defendant Below, Petitioner 

### March 23, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS vs) No. 17-0239 (Monroe County 15-C-35)

OF WEST VIRGINIA

Walter Smith, Plaintiff Below, Respondent



### MEMORANDUM DECISION

Petitioner Douglas Arbuckle, pro se, appeal s the February 10, 2017, order of the Circuit Court of Monroe County denying his motion to set aside a default judgment awarded to Respondent Walter Smith in the amount of $ 51,423.95 , pl us interest, at the rate provided by law. Respondent, by counsel William D. Stover, filed a summary response in support of the circuit

court’s order.

The Court has considered the parties’ briefs and the record on appe al. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

Petitioner, a licensed attorney, represented re spondent in a prior action where, on June 5, 2013, judgment was entered against responden t in the amount of $ 33,323.37 . On June 1, 2015, respondent filed the instant actio n alleging that petitioner’s representation of him had been negligent. In an amended complaint filed on July 1, 2015, respondent sought compensatory and incidental damages plus court costs, attorney’s fe es, and interest. Petitioner filed an answer to the amended complaint on August 11, 2015. Petitioner asse rted a statute of limitations defense, claimed that respondent’s action wa s frivolous pursuant to Rule 11 of the West Virginia Rules of Civil Procedure, and otherwise ge nerally denied responde nt’s allegations. In the answer, petitioner

listed his address as 205 North Cour t Street, Lewisburg, West Virginia.

On April 14, 2016, the circuit court entered a scheduling order. The circuit court set the pretrial conference for October 17, 2016, and th e trial for November 16, 2016. The circuit court directed that a copy of the scheduling order be sent to petitioner at the North Court Street address that was provided in his answer to the amended complaint.

1On May 11, 2016, respondent filed a motion to compel discovery because petitioner failed to respond to a set of interroga tories and a request fo r production of documen ts sent to him on March 15, 2016. By order entered May 15, 2016, the circ uit court directed petitioner to comply with respondent’s discovery requests within thirty da ys of the order. When pe titioner still failed to produce the requested discovery within the timefra me directed by the cour t, respondent filed a motion for sanctions. In the motion, respondent sought attorney’s fees and asked that a default be entered for petitioner’s non-compliance. On A ugust 15, 2016, respondent notic ed a hearing on the motion for sanctions for September 19, 2016, and sent the notice to petitione r at the North Court

Street address and also to P. O. Box 1684, Lewisburg, West Virgin ia. According to respondent, his attorney received the post office box address from petitioner via text message.

On August 15, 2016, petitioner answered res pondent’s interrogatories, but failed to respond to the request for production of documents or to appear at the September 19, 2016, hearing on respondent’s motion for sanctions. Following the hearing, by order entered September 26, 2016, the circuit court directed petitioner to pay respondent $500 for attorney’s fees and travel expenses “caused by [petitioner]’s failure to fully and timely re spond” to respondent’s discovery requests and to provide a complete response to the request for production of documents within fourteen days of its order. The circuit court cautioned petitioner that his continued non-compliance would cause the court to “consider the imposition of further sanctions, to include: the striking of [petitioner]’s pleadings.”

Petitioner failed to appear at the Octobe r 17, 2016, pretrial conference. Following the pretrial conference, by order entered October 21, 2016, the circuit court found that petitioner failed to comply with the September 26, 2016, order sa nctioning him in the amount of $500 and directing him to provide a complete response to res pondent’s request for production of documents. The circuit court noted that petiti oner failed to make “any communi cation with [respondent]’s counsel since the entry of the [September 26, 2016, order].” Given pe titioner’s non-comp liance with its prior order, the circuit court stru ck petitioner’s answer and entere d a default in respondent’s favor on the issue of liability. The circ uit court ruled that the November 16, 2016, tr ial would be on the issue of damages only and directed that a copy of its order be sent to attorneys and unrepresented parties “at their respectiv e addresses of record.”

Meanwhile, on October 18, 2016, respondent sent a notice of hearing for the November 16, 2016, trial to petitioner at P.O. Box 1684, Lewisburg, West Virgin ia. To the notice, respondent attached a statement setting forth the damages that he would seek at trial. Petitioner failed to appear at trial. The circuit cour t heard respondent’s testimony regard ing the extent of his damages, including for inconvenience, aggr avation, and emotional distress. Fo llowing trial, the circuit court entered a default judgment in respondent’s favor in the total amount of $51,423.95, plus interest, at the rate provided by law.

In contrast to the foregoing, petitioner repr esents that, on November 16, 2016, he called the

circuit court and was told that trial was held earlier that day. Subsequently, on November 22, 2016, judgment was entered against petitioner. The follo wing day, petitioner file d a motion to set aside the default judgment pursuant to Rule 60(b) of th e West Virginia Rules of Civil Procedure. On

2February 6, 2017, the circuit court held a hearing on petitioner’s motion and heard argument from the parties. By order entered on February 10, 2017, the circuit cour t denied the motion to set aside the default judgment. It is from this order that petitioner now appeals.

Rule 55(c) of the West Virginia Rules of Civil Procedure provides that, “[f]or good cause shown,” a circuit court may set aside a default judgment “in accordance with Rule 60(b).” “A motion to vacate a default judgment is addresse d to the sound discretion of the court and the court’s ruling on such moti on will not be disturbed on appeal unless there is a showing of an abuse of discretion.” Syl. Pt. 1, Hardwood Group v. LaRocco , 219 W.Va. 56, 631 S.E.2d 614 (2006) (internal quotations and citations omitted). In syllabus points 3 and 5 of Hardwood Group , we held

as follows:

3. “In determining whether a default j udgment 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.” Syllabus point 3, in part, Parsons v. Consolidated Gas Supply Corp. , 163 W.Va. 464, 256 S.E.2d 758 (1979).

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5. In addressing a motion to set as ide a default judgment, “good cause” requires not only considering the fact ors 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 Ru le 60(b) . . . has been satisfied.

219 W.Va. at 58, 631 S.E.2d at 616.

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 caus e” (emphasis added).

We will address in turn the Parsons factors and whether petitioner has demonstrated excusable neglect. See id. at 64-65, 631 S.E.2d at 622-23. Then, we wi ll weigh all those f actors together to determine whether petitioner demonstrated good cause for reversing the denial of his motion to set aside the default judgment. See Id. at 65-66, 631 S.E.2d at 623-24.

The degree of prejudice

The circuit court found that petitioner engaged in “a pattern of dilatory conduct,” but failed to make a specific finding that respondent was unduly prejudiced thereby. However, even if a finding of no undue prejudice was made, such fi nding does not preclude us from affirming the

denial of the motion to set aside the default judgment. See Hardwood Group , 219 W.Va. at 65-66, 631 S.E.2d at 623-24 (affirming the denial of a Rule 60(b) motion despite a finding of no undue prejudice).

3The presence of material issues of fact and meritorious defenses

We reject petitioner’s argument that he ha d meritorious defenses to respondent’s action. Petitioner asserted a non-specified statute of limitations defens e, claimed that the action was frivolous pursuant to Rule 11 of the West Virg inia Rules of Civil Procedure, and otherwise generally denied respondent’s allegations. As to the underlying claim against petitioner, we find that the appropriate statute of limitations is set forth in West Virginia Code § 55-2-12(b) as the claim alleges “a breach of duty imposed by law on th e attorney[-]client relationship.” Syl. Pt. 2,

Hall v. Nichols , 184 W.Va. 466, 400 S.E.2d 901 (1990). We st Virginia Code § 55-2-12(b) provides that a tort action must be filed within two years of the claim accruing. In this case, judgment was entered against respondent on June 5, 2013, and respondent fi led the instant legal malpractice action against petitioner on June 1, 2015. Therefore, we find that the action was not

time-barred.

Rules 11(b)(1) and (2) require an attorney or unrepresented party to certify that a pleading is not being filed for an improper purpose, such as to harass or ne edlessly increase the cost of litigation, and that “the claims, defenses, and other legal conten tions therein are warranted by existing law or by a non[-]fri volous argument for the extension, modification, or reversal of existing law or the establishment of new law.” In the instant case, petitioner fails to explain how respondent’s amended complaint asserts a frivolous claim. Upon our review of the record, we find nothing to support an allegation that the claim is frivolous. With regard to petitioner’s general denial of respondent’s allegations, we note that the circuit court st ruck petitioner’s answer for his failure to comply with its September 26, 2016, order. Therefore, we concur with the circuit court’s finding that petitioner failed to “est ablish that a different outcome w ould be probable or likely . . . if judgment were set aside and [a] new trial ordered.”

The significance of the interests at stake

We need to discuss this Parsons factor only briefly. In respondent’s amended complaint, he sought compensatory and incidental damages pl us court costs, attorney’s fees, and interest. Upon hearing respondent’s testimony re garding the extent of his damages, the circuit court entered a default judgment in his favor in the total am ount of $ 51,423.95 , plus interest , at the rate provided by law. Therefore, based on our review of the reco rd, we find that that these damages constitute a significant amount. See, e.g.

, 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”).

The degree of intransigence on th e part of the defaulting party

The circuit court found that petitioner’s failure to timely and fully respond to discovery requests, comply with court orders, and appear for properly noticed hear ings and the November 16, 2016, trial “constituted an extreme degree of intr ansigence.” We find that both in petitioner’s Rule 60(b) motion and in his initial presentation at the February 6, 2017, hearing, he never asserted that he did not have notice of the hearings at wh ich he failed to appear. Rather, petitioner recited his various medical problems and st ated that “with all of that going on,” he “mi ssed” the notices of the hearings. Petitioner explained th at “[t]he dates weren’t on” his schedule because he had to lay

4off his secretary who kept the schedule up-to-date. Though petitioner later asse rted that he did not receive the notices, respondent notes that petitioner was non-responsive at the hearing when the

circuit court asked him at which address he re ceived documents from the clerk. We note that petitioner gave contradictor y answers. Petitioner initially stated th at he had to move his files to his

home because he was forced to close his office. Ho wever, petitioner informed the circuit court that he did not customarily give out his home address b ecause of most of his pa st practice was criminal defense work. At one point, petiti oner explained that he had a post office box, but that he “could no longer afford to pay for the box.” Finally, petiti oner stated that, though his current practice is limited, he was conducting litigation “by e-mail.” At the end of the hearing, the circuit court was

still unsure of the address at which petitioner received documents from the clerk.

In its February 10, 2017, order, the circuit cour t found that petitioner “h ad an obligation to keep” the court and respondent’s attorney “appraised of [his] proper mailing address for notice and service of litigation documents in order for [the] case to properly proceed.” In State ex rel. Clark v.

Blue Cross Blue Shield of West Virginia, Inc. , 203 W.Va. 690, 703 n.13, 510 S.E.2d 764, 777 n.13 (1998), we found that “parties giving notice have the right to rely on addresses provided on pleadings, and are not required to search for the correct address.” See also Rule 5(b), W.V.R.C.P. (providing that “[s]ervice upon [an] attorney or upon a party shall be made by delivering a copy to the attorney or party; or by mailing it to the attorney or party at the atto rney’s or party’s

last-known address . . . .”) (emphasis added). Therefore, we concur with the circuit court’s finding that petitioner had a duty to keep the court a nd respondent’s attorney in formed of his current mailing address and that his pattern of dilato ry conduct demonstrated a great degree of intransigence.

Excusable neglect

Petitioner argues that his medical problems ex cused his failure to timely and fully respond to discovery requests and to appear at hearings and the November 16, 2016, trial. See Rule 60(b)(1), W.V.R.C.P. (providing that a party may be relieved from a final judgment because of “[m]istake, inadvertence, surprise, excusable neglect , or unavoidable cause”) (emphasis added). Respondent counters that, despite any medical issues, petitioner ma intained his legal practice (albeit on a limited basis) throughout the period of the parties’ litigation. Accordingly, respondent argues that any medical problems th at petitioner had do not excuse hi s failure to participate in a

case where he was the defendant . We agree with respondent.

In its February 10, 2017, order, the circu it court found that peti tioner did not present evidence to support his proffer that his medical conditions were debilitating. In State ex rel. Miller

v. Karl , 231 W.Va. 65, 70, 743 S.E.2d 876, 881 (2013), we f ound that “a proffer is not evidence unless the parties stipulate that a proffer will suffi ce.” (internal quotations a nd citations omitted). It is clear from the February 6, 2017, hearing tran script that respondent did not stipulate that petitioner’s medical conditions rendered him incapacitated. Because—as petitioner concedes—he maintained his legal practice on a limited basis, we concur with the circ uit court’s finding that participation in “personal litigation” in which petitioner was the defendant “should not have presented anything extraordinary.” Therefore, we conclude that petitione r failed to demonstrate

5excusable neglect for his failure to timely and fu lly respond to discovery re quests and to appear at hearings and the November 16, 2016, trial.

The weighing of the Parsons factors and the lack of excusable neglect

We find that the combination of the great de gree of intransigence, exhibited by petitioner’s dilatory conduct, and his failure to demonstrate ex cusable neglect establish that petitioner failed to show good cause to set aside the default judgment. In Parsons , we found that “any degree of intransigence” should “weigh heavily against” the defaulting party. 163 W.Va. at 473, 256 S.E.2d

at 763. In Hardwood Group , we found that “the stronger the excusable neglect or good cause shown, the more appropriate it is to give relief against the default judgment.” 219 W.Va. at 65, 631 S.E.2d at 623 (internal quotations and citations omitted). Moreover, “[a]lthough this [C]ourt is quite willing to review default judgments and to overturn them in cases where good cause is shown, a demonstration of such good cause is a necessary predicate to our overruling a lower

court’s exercise of discretion.” Id. at 65-66, 631 S.E.2d at 623-24 (i nternal quotations and citations omitted). Therefore, we find that the circuit court did not abuse its discretion in denying petitioner’s Rule 60(b) motion to set aside the default judgm ent awarded to respondent.

For the foregoing reasons, we affirm the circuit court’s February 10, 2017, order denying petitioner’s motion to set aside a default judgment awarded to respondent in the amount of $ 51,423.95 , plus interest, at th e rate provided by law.

Affirmed.

ISSUED : March 23, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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