STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

April 5, 2017 

BRIAN LUBORSKY, released at 3:00 p.m. 

RORY L. PERRY, II CLERK Defendant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) Nos. 15-0787 & 16-0329 (Wood County Civil Action No. 09-C-407) 

KIMBERLY S. CARROLL, JAMES C. BROWN, CARRIE SHOOK, 

GINGER R. RIGGINS, AMANDA R. MALONE, AND CORDIA S. LITTLE, 

Plaintiffs Below, Respondents 

MEMORANDUM DECISION 

Petitioner, a defendant below, Mr. Brian Luborsky(“Mr. Luborsky), bycounsel 

Samuel M. Brock, III and David A. Bosak, separately appeals two circuit court orders 

rendered in the underlying case, which alleged, inter alia, causes of action for wrongful 

discharge and violations of the West Virginia Wage Payment and Collection Act (“WPCA”), 

W. Va. Code § 21-5-1 et seq. We have consolidated the two appeals for purposes of our 

review. Both challenged orders denied Mr. Luborsky’s motion to alter or amend judgment 

or, in the alternative, for a new trial. In the first order, the circuit court found that Mr. 

Luborsky waived any challenge to the manner and sufficiency of service of the complaint, 

and to personal jurisdiction. The second order found that Mr. Luborsky had waived each of 

his assigned errors challenging the circuit court’s findings of fact and conclusions of law. 

On appeal, Mr. Luborsky contends that the circuit court erred in finding he waived his 

challenges to the various rulings of that court and further argues that he should have 

prevailed on the merits of his claimed errors and been granted judgment in his favor or, in 

the alternative, a new trial. Respondents, plaintiffs below, Kimberly S. Carroll, James C. 

Brown, Carrie Shook, Ginger R. Riggins, Amanda R. Malone, and Cordia S. Little (“Plaintiff 

Beauticians”), by counsel Walt Auvil and Robert M. Bastress, Jr., filed timely responses. 

This Court has considered the parties’ briefs, the appendix record designated 

for our review, the pertinent authorities, and oral argument. We find no new or significant 

questions of law, and, upon application of the standard for our review, we find no prejudicial 

error. For these reasons, a memorandum decision affirming the order of the circuit court is 

appropriate under Rule 21 of the Rules of Appellate Procedure. 

At the time relevant to the action underlying the present appeal, Plaintiff 

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Beauticians worked in a beauty salon (“the Vienna Salon”) at the Grand Central Mall in 

Vienna, West Virginia, and were employed by Trade Secret Beauty Stores, Inc., a subsidiary 

of Trade Secrets, Inc. Trade Secrets, Inc., had been owned by Regis Corp. and/or Regis 

Corporation. On or around February 16, 2009, Premier Salons Beauty, Inc. (“Beauty, Inc.”), 

purchased the Trade Secret entities from Regis Corp.,1 which included the Vienna Salon 

where Plaintiff Beauticians worked. Shortlyafter acquiring the Trade Secret entities, Beauty, 

Inc., provided the Plaintiff Beauticians with its “Employee Policies and Agreements” 

(“Employment Agreements”) that included, inter alia, a non-compete agreement, a nonsolicitation of customers agreement, and an arbitration agreement. Each agreement was 

accompanied by a space for the employee’s signature. Plaintiff Beauticians declined to sign 

any of the agreements. 

Thereafter, on March 11, 2009, Cindy Walton, the regional manager for 

Beauty, Inc., visited the Vienna Salon and advised the Plaintiff Beauticians that, if they 

refused to sign the agreements, their employment would be terminated.2 The Plaintiff 

Beauticians all declined to sign, and, as a result, the Plaintiff Beauticians’ employment was 

terminated. After the Plaintiff Beauticians refused to leave the premises, they were escorted 

from the Vienna Salon by local police officers and mall security officers. 

On August 18, 2009, Plaintiff Beauticians filed a complaint in the Circuit Court 

of Wood County against Beauty, Inc.; Premier Salons, Inc.; Premier Salons International, 

Inc.; Regis Corp.; Regis Corporation; and Cindy Walton alleging they had been wrongfully 

discharged in violation of public policyand for untimelypayment of wages under the WPCA. 

During the course of the proceedings below, the case was held in abeyance when, on July 6, 

2010, Beauty, Inc., filed a petition for bankruptcy in the United States Bankruptcy Court for 

the District of Delaware. 

Counsel for Plaintiff Beauticians conducted a telephonic deposition of Mr. 

Luborsky on November 29, 2011. Mr. Luborsky, a citizen and resident of Canada, had been 

1

The Trade Secret entities included approximately 625 beauty salons. 

2

Kimberly S. Carroll, a hairdresser; James C. Brown, a barber/stylist; and 

Cordia S. Little, a hairdresser, all testified that they were required to sign all three agreements 

to maintain their employment. Carrie Shook, a hair stylist, testified that she was told by Ms. 

Walton that she was not required to sign the non-compete agreement, but she was required 

to sign the non-solicitation of customers agreement and an arbitration agreement. The 

testimony of Ginger R. Riggins and Amanda R. Malone, both beauty advisors, indicated that 

neither was directly told by Ms. Walton to sign any of the forms, but they both were 

discharged along with the other plaintiffs. 

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designated by corporate defendants Beauty, Inc., and Premier Salons, Inc.,3 pursuant to Rule 

30(b)(7) of the West Virginia Rules of Civil Procedure. During his Rule 30(b)(7) deposition, 

Mr. Luborsky testified that he had been President of Beauty, Inc., the corporate owner of the 

Vienna Salon, which was dissolved in January 2010. He further testified that he currently 

served as CEO and President of Premier Salons, Inc., a Delaware corporation. 

On July 13, 2012, Plaintiff Beauticians filed their “Second Amended 

Complaint” in the Circuit Court of Wood County adding Mr. Luborsky as a named 

defendant. Plaintiff Beauticians alleged that Mr. Luborsky should be held liable for the acts 

and omissions of the various corporate defendants under a theory of piercing the corporate 

veil. Service of the Second Amended Complaint was attempted by mailing the same to Mr. 

Luborsky at an address in Markham, Ontario, Canada. However, the mailing was addressed 

to Markham, Ohio, with an Ontario zip code. Mr. Luborsky claims he never received a copy 

of the summons and Second Amended Complaint. 

Nevertheless, an answer to the Second Amended Complaint was filed on behalf 

of the defendants, including Mr. Luborsky, on August 3, 2012. The answer set forth, in 

relevant part, the following affirmative defenses: 

43. Defendant Luborsky respectfully states that he is 

not subject to personal jurisdiction in West Virginia. 

44. The Second Amended Complaint fails because of 

insufficient service of process. 

45. The Second Amended Complaint fails because of 

lack of service of process. 

The circuit court thereafter entered a Scheduling Order, by agreement of the 

parties, providing that any dispositive motions were to be filed on or before April 19, 2013, 

and set the case for trial on July 9, 2013.4 No motions to dismiss for failure of service of 

process or lack of jurisdiction were submitted either before or after the April 19, 2013, 

agreed deadline. 

3

Mr. Luborsky testified that Premier Salons International, Inc., had been 

dissolved approximately ten years prior. 

4

Although this scheduling order is not included in the record on appeal, Mr. 

Luborsky does not dispute that the parties agreed to the scheduling order or the Plaintiff 

Beauticians’ representation of the deadlines contained therein. 

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By order entered on December 7, 2012, the circuit court denied a motion for 

partial summary judgment filed by the Plaintiff Beauticians. The order notes that 

“Defendants” had filed a joint memorandum in opposition thereto. The order is signed by 

counsel who represented Mr. Luborsky and other defendants. In addition, the order 

dismissed Beauty, Inc.; Premier Salons International, Inc.; and Regis Corp., noting that the 

dismissals were by agreement of the parties. 

On April 8, 2013, the lawyers/law firms representing Premier Salons, Inc.; 

Regis Corporation; Cindy Walton; and Brian Luborsky filed a joint motion to withdraw as 

counsel citing non-payment of substantial attorney’s fees as their grounds. The record 

contains a letter from counsel to Premier Salons, Inc., that also was copied to Mr. Luborsky, 

advising of counsel’s withdrawal. The letter contained an express warning that “Defendants 

have the burden of keeping the Court informed where notice, pleadings, or other papers may 

be served. Defendants have the obligation of hiring other counsel to prepare for trial. If 

Defendants fail or refuse to meet these burdens, they may suffer possible default.” 

Nevertheless, neither Premier Salons, Inc., nor Mr. Luborsky communicated with the circuit 

court or retained new counsel. However, on June 14, 2013, a pre-trial conference 

memorandum was filed on behalf of Mr. Luborsky by his withdrawing counsel. 

By order entered July 29, 2013, the circuit court granted a motion seeking a 

continuance filed on behalf of defendant Regis Corporation and continued the trial to 

October 7, 2013. The circuit court further ruled that, in the event the case could not be tried 

at that time, it also would be placed on the civil case docket for April 8, 2014. 

On October 4, 2013, the circuit court entered an order explaining, inter alia, 

that 

[a] hearing was held on [defense counsel’s] Motion [to 

Withdraw], and while the Court stated on the record that it was 

granting the Motion, no Order has been entered to this effect. 

As the Court speaks only through its Orders, [defendants’ 

counsel] are still considered to be counsel of record in this case, 

with all the duties and responsibilities attendant thereto. 

(Emphasis added). 

Defense counsels’ joint motion to withdraw as counsel was subsequently 

granted by order entered on November 12, 2013. Pursuant to the order, service as to all 

defendants was to be mailed to the Premier Salons, Inc., corporate offices in Golden Valley, 

Minnesota, which was the address provided byformer defense counsel. Plaintiff Beauticians 

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aver that, after the entry of this order, they mailed all their court filings to the Golden Valley, 

Minnesota, address.5 It appears that, after his counsel’s withdrawal, Mr. Luborsky did not 

participate further in the proceedings below, either in person or by counsel, prior to judgment 

being entered. 

The trial was not had on October 8, 2013, so the matter was carried forth for 

trial on April 8, 2014. On March 27, 2014, defendant Cindy Walton filed a motion seeking 

a continuance and to vacate the previously entered scheduling order. The circuit court 

granted the motion. Thereafter, on July 8, 2014, a scheduling order was entered setting the 

trial for January 27, 2015, and scheduling a pretrial conference for January 5, 2015. The 

order directed that “[a]ny and all pretrial motions (including motions in limine and 

dispositive motions) shall be filed and properly noticed for hearing at the pretrial 

conference, or such earlier date as set by counsel.” (Emphasis added). Regis subsequently 

was granted summary judgment,6 and a joint motion by the Plaintiff Beauticians and Cindy 

Walton to dismiss the claims against Cindy Walton based upon the parties’ compromise and 

settlement of those claims was granted by the circuit court.7 

A bench trial was had on January 27, 2015, without the participation of Mr. 

Luborsky or Premier Salons, Inc. At the time of trial, Premier Salons, Inc., and Mr. Luborsky 

were the only remaining defendants due to voluntary dismissals, the award of summary 

judgment, and the compromise and settlement. After the presentation of evidence by the 

Plaintiff Beauticians, the circuit court entered a Judgment Order on April 27, 2015, finding 

the Plaintiff Beauticians had been wrongfully discharged in violation of substantial public 

policies of this State.8 The court found defendants liable for a total of $179,707.16 in 

economic losses; $195,000 for emotional distress damages; and $23,177.82 in damages under 

5

Mr. Luborskyclaims he did not receive anycourt filings submitted byPlaintiff 

Beauticians after he was named as a defendant. Notably, the filings submitted by Plaintiff 

Beauticians following the withdrawal of Mr. Luborsky’s defense counsel were mailed to the 

same address where he ultimately received the circuit court’s judgment order. 

6

By Order entered on August 20, 2014, the circuit court granted summary 

judgment to Regis finding it was undisputed that Regis was not the Plaintiff Beauticians’ 

employer at the time of their discharges and played no role whatsoever in those discharges. 

7

The order, entered on December 9, 2014, preserved any potential respondeat 

superior liability on the part of the remaining defendants resulting from the actions of Cindy 

Walton. 

8

See infra note 16. 

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the WPCA for failing to timely pay Plaintiff Beauticians their wages following the 

termination of their employment. The circuit court also awarded prejudgment interest on the 

back pay and WPCA claims. Finally, the circuit court found it was appropriate to pierce the 

corporate veil in this instance and hold Mr. Luborsky personally liable for the judgment. The 

judgment order was mailed to the defendants, Mr. Luborsky and Premier Salons, Inc., at the 

Golden Valley, Minnesota, address. 

On May 7, 2015, Mr. Luborsky filed a motion to alter or amend judgment or, 

in the alternative, for a new trial, in which he challenged the sufficiency of service on him 

of the Second Amended Complaint, challenged the circuit court’s personal jurisdiction over 

him, argued that he should be granted a new trial on grounds of “fundamental fairness,” and 

challenged various findings of fact and conclusions of law made by the circuit court. 

Following a hearing on July 1, 2015, and by order entered July 15, 2015, the 

circuit court denied Mr. Luborsky’s motion as to his challenges related to the sufficiency of 

service and personal jurisdiction. The circuit court also denied his motion for a new trial. 

As to Mr. Luborsky’s challenges to the circuit court’s findings and conclusions, the circuit 

court noted that it had allowed the Plaintiff Beauticians until July 15, 2015, to respond to the 

challenges, and Mr. Luborsky was to file his reply by July 27, 2015. Mr. Luborsky appealed 

the circuit court’s July 15, 2015, order. This Court assigned docket number 15-0787 to said 

appeal. 

By subsequent order entered March 3, 2016, the circuit court denied Mr. 

Luborsky’s motion to alter or amend or for a new trial as it related to Mr. Luborsky’s 

challenges of the circuit court’s findings of fact and conclusions of law.9 Mr. Luborsky 

9

Procedurally, we note that, because this Court docketed Mr. Luborsky’s appeal 

of the July 15, 2015, order, no further proceedings should have occurred in this matter below 

without leave of this Court. Syl. pt. 3, Fenton v. Miller, 182 W. Va. 731, 391 S.E.2d 744 

(1990) (“Once this Court takes jurisdiction of a matter pending before a circuit court, the 

circuit court is without jurisdiction to enter further orders in the matter except by specific 

leave of this Court.”). Thus, we remind the bench and bar that, in general, circuit courts lack 

jurisdiction to issue rulings while a proper appeal is pending before this Court. See Syl. pt. 

1, State v. Doom, 237 W. Va. 754, 791 S.E.2d 384 (2016) (“‘When the Supreme Court of 

Appeals of West Virginia grants a petition for appeal all proceedings in the circuit court 

relating to the case in which the petition for appeal has been granted are stayed pending this 

Court’s decision in the case. Such stay of proceedings is mandatory under W. Va. Code, 62­

7-2 [(1923) (Repl. Vol. 2015)].’ Syllabus point 2, State ex rel. Dye v. Bordenkircher, 168 

(continued...) 

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appealed the circuit court’s March 3, 2016, order. This Court assigned docket number 16­

0329 to said appeal. 

The two appeals have been consolidated for purposes of our review. 

Mr. Luborsky herein appeals two post-trial orders entered by the circuit court 

denying his motion pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure to 

alter or amend judgment following a bench trial, or, in the alternative, for a new trial 

pursuant to Rule 59(a).10 

The standard of review applicable to an appeal from a 

motion to alter or amend a judgment, made pursuant to 

W. Va. R. Civ. P. 59(e), is the same standard that would apply 

to the underlying judgment upon which the motion is based and 

from which the appeal to this Court is filed. 

Syl. pt. 1, Wickland v. American Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657 

(1998). 

In reviewing challenges to the findings and conclusions 

of the circuit court made after a bench trial, a two-pronged 

deferential standard of review is applied. The final order and 

the ultimate disposition are reviewed under an abuse of 

discretion standard, and the circuit court’s underlying factual 

findings are reviewed under a clearly erroneous standard. 

Questions of law are subject to a de novo review. 

9

(...continued) 

W. Va. 374, 284 S.E.2d 863 (1981).”). 

10This Court has recognized that 

“[u]nder the provisions of Rule 59(a) of the Rules of 

Civil Procedure the court, upon a motion . . . in an action tried 

without a jury, may open the judgment and direct the entry of a 

new judgment. . . .” Syllabus Point 4, Investors Loan 

Corporation v. Long, 152 W. Va. 673, 166 S.E.2d 113 (1969). 

Syl. pt. 1, Blankenship v. Estep, 201 W. Va. 261, 496 S.E.2d 211 (1997) (per curiam). 

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Syl. pt. 1, Public Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 

538 (1996). Accord Syl. pt. 1, Poulos v. LBR Holdings, LLC, 238 W. Va. 89, 792 S.E.2d 588 

(2016). Similarly, “[t]his Court reviews the rulings of the circuit court concerning a new trial 

and its conclusion as to the existence of reversible error under an abuse of discretion 

standard . . . .” Syl. pt. 1, in part, Burke-Parsons-Bowlby Corp. v. Rice, 230 W. Va. 105, 736 

S.E.2d 338 (2012). We apply these standards to our review of the issues raised by Mr. 

Luborsky. 

In the appeal docketed as number 15-0787, Mr. Luborskychallenges the circuit 

court’s order of July 15, 2015, and raises two assignments of error related to personal 

jurisdiction. He contends that the circuit court erred by finding that he waived the defenses 

of insufficient service of process11 and lack of personal jurisdiction12 because both defenses 

were raised in the answer filed on his behalf. 

We find no error in the circuit court’s conclusion that both defenses were 

waived “by virtue of Defendant Luborsky’s participation through counsel in filing an answer 

and in thereafter participating in these proceedings as a party through counsel[,] in failing to 

raise the issue[s] by motion, and in failing to meet numerous deadlines requiring the filing 

of such motions.” 

With respect to service of process, it has been recognized that 

a defendant may waive the defense [of insufficiency of service 

of process] even if he/she preserved the defense by including it 

in an answer. Such a waiver may occur when there is undue 

delay in filing a motion so that the court may rule upon the 

issue. When unjustifiable delay in bringing the defense for 

resolution produces a prejudice to the plaintiff, courts have 

found that the defendant has waived his/her right to assert the 

11Mr. Luborsky claims that he did not receive service of process insofar as 

service was mailed to the wrong address. Notably, however, an answer was filed on his 

behalf by counsel and his defenses of inadequate service of process and lack of personal 

jurisdiction were raised therein. 

12There is a distinction between the defenses of insufficient service of process 

and lack of personal jurisdiction; however, “[a] consequence that flows from insufficient 

service of process is that a trial court’s presumptive personal jurisdiction is lacking when it 

is properly established that process was not served correctly.” Leslie Equip. Co. v. Wood 

Res. Co., 224 W. Va. 530, 541 n.9, 687 S.E.2d 109, 120 n.9 (2009) (Davis, J., dissenting). 

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defense. For example, a defendant cannot intentionally wait 

until after the statute of limitations has run on the plaintiff’s 

claim before filing a motion for the court to resolve the issue. 

When such a delay occurs, courts will find the defendant waived 

the defense by being dilatory. 

Franklin D. Cleckley, Robin Jean Davis, & Louis J. Palmer, Jr, Litigation Handbook on West 

Virginia Rules of Civil Procedure § 12(h)(1)[2][d], at 417 (4th ed. 2012) (emphasis added; 

footnotes omitted).13 See also King v. Taylor, 694 F.3d 650, 658 (6th Cir. 2012) (recognizing 

that “[e]ven where a defendant properly preserves a Rule 12(b) defense by including it in an 

answer, he may forfeit the right to seek a ruling on the defense at a later juncture through his 

conduct during the litigation. . . . A defendant is required at some point to raise the issue by 

motion for the court’s determination. . . . Waiting too long to do so can forfeit the defense,” 

and finding defense waived where defendant participated in discovery, moved to amend 

scheduling order, joined plaintiff’s request to extend discovery, and attended a status 

conference (footnote and internal quotations and citations omitted)); Datskow v. Teledyne, 

Inc., Cont’l Prods. Div., 899 F.2d 1298, 1303 (2d Cir. 1990) (observing that “[a] delay in 

challenging personal jurisdiction by motion to dismiss has resulted in waiver, even where, 

as here, the defense was asserted in a timely answer,” and concluding that defendant waived 

personal jurisdiction defense raised in answer when defendant attended conference with 

magistrate, participated in scheduling discovery and motion practice, and delayed a few 

months before raising defense by motion to dismiss); Beyoglides v. Montgomery Cty. Sheriff, 

13Mr. Luborsky additionally contends that he was not served in compliance 

with Article XV of the Hague Convention on the Service Abroad of Judicial and 

Extrajudicial Documents, Nov. 15, 1965, 20 U.S.T. 361, which governs international service 

of process between the United States and Canada. We note that claims asserting ineffective 

service under the Hague Service Convention also may be waived. See, e.g., S.E.C. v. Internet 

Sols. for Bus. Inc., 509 F.3d 1161, 1167 (9th Cir. 2007) (finding waiver of claim of 

insufficient service based upon failure to comply with the Hague Convention where not 

raised in motion to vacate default judgment or in reply to opposition to motion in the district 

court); Photolab Corp. v. Simplex Specialty Co., 806 F.2d 807, 811 (8th Cir. 1986) (holding 

district court properlydetermined foreign companywaived objection to sufficiencyof service 

because issue was not raised in pretrial motion or answer, and motion challenging sufficiency 

of process filed ten months after complaint did not raise Hague Convention); Zisman v. 

Sieger, 106 F.R.D. 194, 198 (N.D. Ill. 1985) (“[B]y failing to raise its objection to service 

based on the Hague Convention in the previous motion, when that objection was clearly 

available to it, [foreign company] has waived that objection to the sufficiency of service of 

process.”). 

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166 F. Supp. 3d 915, 919 (S.D. Ohio 2016) (finding affirmative defense asserting 

insufficiency of process was forfeited where defendant, through counsel, raised the defense 

in answer; participated in discovery conference, jointly submitted report detailing agreed 

deadline for filing motions, joined in motions to extend pretrial deadlines, consented to 

jurisdiction of magistrate, disclosed witnesses, and waited more than a year after agreed 

deadline to file 12(b) motion); Vozeh v. Good Samaritan Hosp., 84 F.R.D. 143 (S.D.N.Y. 

1979) (finding defense of insufficient service was waived where raised in answer but not 

asserted by motion for nearly two years); 2 Moore’s Federal Practice § 12.33[2], at 12-73 

(3rd ed. 2015) (“Even though the defense [of insufficiency of process or service of process] 

is included in the answer, the party must also at some point raise the issue by motion and 

seek the court’s determination of the issue. Waiting too long to do so may forfeit the 

defense. This is similar to the manner in which a personal jurisdiction defense may be 

waived by raising it in the answer without further asserting it (see § 12.31 [3]). In either 

situation, the court must ask whether the defendant’s conduct in litigating before raising the 

defense has given the plaintiff a reasonable expectation that the defendant will defend the 

suit on the merits, or whether the defendant has caused the court to go to some effort that 

would be wasted if the motion asserting the defense is granted.” (emphasis added)) 

Likewise, with respect to personal jurisdiction, the Litigation Handbook on 

West Virginia Rules of Civil Procedure observes that, 

[a]lthough Rule 12(h)(1) does not set out the period of time in 

which a party may contest personal jurisdiction, (other than the 

time for filing an answer) the defense must be made in a 

reasonably timely manner or it is waived. Thus, even if a 

defendant preserves the defense by including it in an answer, 

undue delay in challenging personal jurisdiction by a motion to 

dismiss may constitute waiver. A responsive pleading does not 

preserve the defense in perpetuity. When unjustifiable delay in 

contesting jurisdiction produces a prejudice on the plaintiff, 

courts are more apt to find that the defendant has waived his/her 

right to assert the defense. 

§ 12(h)(1)[2][a], at 415-16 (footnote omitted). In the federal context, it has been similarly 

recognized that “[r]aising lack of personal jurisdiction in an answer, without further pressing 

the issue, has . . . been held to constitute waiver.” 2 Moore’s Federal Practice § 12.31[3], 

at 12-52. See also Burton v. Northern Dutchess Hosp., 106 F.R.D. 477, 481 (S.D.N.Y. 1985) 

(“Defendants have literally complied with Rule 12(h)(1) by asserting the defense of lack of 

jurisdiction in their answers. These responsive pleadings, however, do not preserve the 

defense in perpetuity. Defendants are required at some point to raise the issue by motion for 

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the court’s determination.”). Indeed, it has been explained that 

[e]ven if a defendant asserts the defense of lack of personal 

jurisdiction in its answer, . . . he or she may implicitly waive the 

defense in two ways. First, a defendant may implicitly waive his 

or her lack-of-personal-jurisdiction defense by actively 

participating in the case–through, for example, filing 

counterclaims and third-party claims, participating in discovery 

and hearings, or filing dispositive motions on the merits of the 

plaintiff’s claims. . . . Second, a defendant may implicitly waive 

the defense by waiting a significant period after filing the 

answer to submit a rule 12(b)(2) motion. Courts have found a 

waiver where defendants waited nine months, see Schwartz v. 

M/V Gulf Supplier, 116 F. Supp. 2d 831, 835 (S.D. Tex. 2000), 

two-and-a-half years, see Continental Bank, N.A. v. Meyer, 10 

F.3d 1293, 1297 (7th Cir. 1993), and three years, see Hunger 

U.S. Special Hydraulics v. Hardie-Tynes Manf’g Co., 203 F.3d 

835, 2000 WL 147392, at *2 (10th Cir. 2000) (unpublished), to 

file a rule 12(b)(2) motion after first asserting the defense in 

their answers. 

Fabara v. GoFit, LLC, 308 F.R.D. 380, 393-94 (D.N.M. 2015), as amended (Aug. 20, 2015) 

(footnote omitted). See also Matthews v. Brookstone Stores, Inc., 431 F. Supp. 2d 1219, 

1224-25 (S.D. Ala. 2006) (“[R]eview of persuasive authority from other jurisdictions 

discloses two clear organizing principles for the ‘waiver-by-conduct’ analysis. First, courts 

pay close attention to the length of time that elapses between service of process and a 

defendant’s pursuit of a personal jurisdiction defense via a Rule 12(b)(2) motion. The longer 

the time interval, the more likely it is that courts will find a waiver. . . . Second, in addition 

to the sheer passage of time, courts assessing whether there is a waiver by conduct look to 

the extent of the objecting defendant’s involvement in the action. The more active a 

defendant has been in litigating a case, the more likely it is that the defendant will be deemed 

to have waived defects in personal jurisdiction and impliedly consented to a court’s 

jurisdiction.” (internal citations and footnote omitted)). 

Under the specific circumstances presented in this case, we find the circuit 

court correctly determined that Mr. Luborsky waived his affirmative defenses of insufficient 

service and lack of personal jurisdiction by both delaying his assertion of the defenses and 

by participating in the action. First, Mr. Luborsky waived his defenses by waiting an 

inordinate amount of time before bringing them before the circuit court for a ruling. Indeed, 

a span of about two years and nine months elapsed between the filing of Mr. Luborsky’s 

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answer to the Second Amended Complaint, which initially raised the defenses, and Mr. 

Luborsky finally bringing them before the circuit court for a ruling. During this time, 

Plaintiff Beauticians fully litigated their claims. Moreover, the statute of limitations on the 

Plaintiff Beauticians’ claims expired prior to Mr. Luborsky finally seeking a ruling on his 

assertion of insufficient service of process and lack of personal jurisdiction; thus, to entertain 

these defenses at the late date they were finally raised would certainly have prejudiced the 

plaintiffs. In addition, Mr. Luborsky participated in the action through counsel by agreeing 

to a scheduling order that provided for dispositive motions to be filed on or before April 19, 

2013; filing a pre-trial conference memorandum on June 14, 2013; filing a joint 

memorandum in opposition to the plaintiffs’ motion for partial summary judgment; and 

agreeing to the dismissal of certain defendants. In addition to the foregoing grounds for 

affirming the circuit court’s conclusion that Mr. Luborsky’s claims of insufficient service and 

lack of personal jurisdiction were waived, we are further persuaded of the correctness of this 

conclusion by virtue of a letter in the record whereby Mr. Luborsky’s counsel notified 

defendants Premier Salons, Inc.,14 and Mr. Luborsky of counsel’s withdrawal. Notably, the 

letter advised these defendants of the need to obtain new counsel and that adverse 

consequences could result from a failure to do so. Counsel’s warnings were not heeded as 

neither Premier Salons, Inc., nor Mr. Luborsky, obtained new counsel to protect their 

interests, and neither participated further in the proceedings below. Such a willful neglect 

of rights will not be condoned by this Court. 

In the appeal docketed as number 16-0329, Mr. Luborskychallenges the circuit 

court’s “Second Order Denying Defendant Luborsky’s Motion to Alter or Amend Judgment 

or for a New Trial,” which was entered on March 3, 2016. Mr. Luborsky alleges that the 

circuit court erred in concluding that the Plaintiff Beauticians were wrongfully discharged; 

in awarding damages based upon police involvement on the day the Plaintiff Beauticians 

were discharged; in finding that he should be personally liable to the Plaintiff Beauticians on 

any of their claims; and in finding him liable under a piercing the corporate veil theory. 

In its “Second Order Denying Defendant Luborsky’s Motion to Alter or Amend 

Judgment or for a New Trial,” the circuit court found in relevant part that, 

20. [b]ased upon the procedural history in this matter 

outlined herein, each and every issue raised by Defendant 

Luborsky in his [motion] has been waived by virtue of 

Defendant Luborsky’s failure and refusal to comply with the 

14As noted previously, Mr. Luborsky served as President and CEO of Premier 

Salons, Inc. 

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repeated Orders of this Court. These Orders applied to all 

parties including Defendant Luborsky and were mailed to 

Defendant Luborsky, by service upon his former counsel as well 

as upon Defendant Luborsky directly at the address provided to 

the Court and opposing counsel by Luborsky’s attorneys. 

21. Defendant Luborskynevertheless failed to respond 

and timely file any pleadings raising these matters and issues so 

that this Court might consider them at or before trial. 

22. Defendant Luborsky’s failure and refusal to 

comply with this Court’s Orders have interfered with the timely 

administration of justice on behalf of Plaintiffs in this matter. 

Defendant Luborsky took no action to protect his interests or the 

interests of his corporations until after the entry of an Order 

assessing liability against him. 

23. Defendant Luborsky should not, in light of the 

history set out herein, be relieved from the liability set forth in 

the Court’s April 27, 2015, Judgment Order. 

The circuit court went on to explain how its findings of fact and conclusions of law were 

supported by the record. 

We agree with the circuit court’s ruling. It is well established that, “[i]n the 

exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions 

which were not considered and decided by the court from which the appeal has been taken.” 

Syl. pt. 1, Mowery v. Hitt, 155 W. Va. 103, 181 S.E.2d 334 (1971). Accord Evans v. Bayles, 

237 W. Va. 269, 275, 787 S.E.2d 540, 546 (2016); In re Michael Ray T., 206 W. Va. 434, 

444, 525 S.E.2d 315, 325 (1999); Syl. pt. 3, Voelker v. Frederick Bus. Properties Co., 195 

W. Va. 246, 465 S.E.2d 246 (1995); Syl. pt. 2, Sands v. Security Trust Co., 143 W. Va. 522, 

102 S.E.2d 733 (1958). See also W. Va. R. App. P. 10(c)(7) (setting out requirements for 

appellate brief and requiring, in relevant part, that “[t]he argument must contain appropriate 

and specific citations to the record on appeal, including citations that pinpoint when and how 

the issues in the assignments of error were presented to the lower tribunal”). Because Mr. 

Luborsky failed, during the trial of this matter, to present any facts supporting his position, 

any arguments as to how the facts presented supported his theories, or any legal arguments 

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supporting his theory of the case, he has waived them all.15 

Based upon the foregoing analysis, we affirm the July 15, 2015, and March 3, 

2016, orders of the Circuit Court of Wood County denying Mr. Luborsky’s motion to alter 

or amend judgment and denying his motion for a new trial.16 

Affirmed. 

ISSUED: April 5, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

15Mr. Luborsky also argues that “the circuit court improperly concluded that 

he waived his right to fundamental fairness (or due process), or, perhaps, his right to 

complain about fundamental fairness (or due process).” He cites only one case in this 

argument for the proposition that it “has always been the policy of this Court to protect each 

litigant’s day in court.” Litten v. Peer, 156 W. Va. 791, 799, 197 S.E.2d 322, 328 (1973). 

We summarily reject as inadequately briefed this cursory argument that fails to clearly set out 

a precise assignment of error. See, e.g., State v. White, 228 W. Va. 530, 541 n.9, 722 S.E.2d 

566, 577 n.9 (2011) (“Typically, this Court will not address issues that have not been 

properly briefed.”); State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) 

(“Although we liberally construe briefs in determining issues presented for review, issues 

which are not raised, and those mentioned only in passing but [which] are not supported with 

pertinent authority, are not considered on appeal.”); State, Dep’t of Health & Human Res., 

Child Advocate Office v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) 

(“[A] skeletal ‘argument,’ reallynothing more than an assertion, does not preserve a claim[.]” 

(internal quotations and citations omitted)). 

16Because our affirmance is based solely on Mr. Luborsky’s waiver, we do not 

reach the merits upon which relief was granted by the circuit court. 

14