State ex rel. Harper-Adams v. Murray
State ex rel. Harper-Adams v. Murray
Opinion of the Court
The instant action is before this Court upon the appeal of Donna Sue Murray [hereinafter “Appellant”], from a March 21, 2007, order entered by the Circuit Court of Kanawha County granting default judgment against her and assessing punitive damages as part of that judgment in lieu of attorneys
I.
FACTUAL AND PROCEDURAL HISTORY
Appellant was appointed administratrix of the estate of her mother, Susie Mae Pendleton Smith, following her mother’s death in September, 2000.
Appellee filed a Motion for Default Judgment on October 21, 2005.
At the hearing, the circuit court awarded default judgment against Appellant as to Count I of the Complaint, for a sum certain of $108,766.00.
The court then conducted the inquiry of damages on Count III of the Complaint. The circuit court specifically found that thei'e were three assets remaining in the decedent’s Estate. Those assets consisted of the decedent’s home, coin collection and the remainder of the net proceeds of the distribution of the $20,000.00 bond after the expenses and fees were paid by the Estate. The court ordered that a constructive trust be imposed over the Appellant’s one-fifth interest in the remaining assets of the Estate,
II.
STANDARD OF REVIEW
A judgment by default may be entered in West Virginia pursuant to the guidelines of Rule 55 of the West Virginia Rules of Civil Procedure [1998].
III.
DISCUSSION
This appeal involves an entry of default as to liability and an entry of default judgment as to the issue of damages. We have traditionally recognized a distinction between the two. In Syl. Pt. 2, Coury v. Tsapis, 172 W.Va. 103, 304 S.E.2d 7 (1983), we held that “a default relates to the issue of liability and a default judgment occurs after damages have been ascertained.” For reasons explained below, we affirm the circuit court’s entry of default as to liability. However, we reverse the entry of the default judgment awarding damages, and remand with directions.
A. Entry of Default Determining Liability
Appellant alleges that default was improper because the Appellant had multiple eommunications with the circuit court and opposing counsel. Specifically, Appellant alleges that she had direct verbal communication with court personnel throughout the course of the litigation.
Rule 55(a) requires that when a party against whom an entry of default is sought has “failed to plead or otherwise defend as provided for by these rules, and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default.” In the ease before us, Appellant was served with the Summons and Complaint via certified mail on August 26, 2005. Pursuant to Rule 12 of the Wesf Virginia Rules of Civil Procedure, Appellant’s Answer to the Complaint was due no later than 30 days after the service of the summons. As of October 21, 2005, the date the Motion for Default Judgment was filed, Appellant made no request for an extension of time to file an Answer, and made no appearance before the Court or otherwise
We have held that certain forms of informal communication between litigants will require that a defaulting party be given notice before unliquidated damages can be assessed under Rule 55(b)(2) of the West Virginia Rules of Civil Procedure. Cales v. Wills, 212 W.Va. 232, 241, 569 S.E.2d 479, 488 (2002).
B. Default Judgment Awarding Damages
Although we find that the circuit court properly entered default as to liability against the Appellant based upon her failure to file an Answer or other responsive pleading, we find that the circuit court erred in awarding default judgment on Count I (the alleged sum certain amount) and Count III (the alleged unliquidated damages count) of the Complaint.
Appellee’s Motion for Default Judgment contended that Count I of the Complaint, alleging embezzlement, conversion and breach of fiduciary duty, was for a sum certain of $228,500.00, together with pre- and post-judgment interest. However, the motion and supporting affidavits do not demon
We have traditionally held that
[t]he term “sum certain” under West Virginia Rules of Civil Procedure Rule 55(b)(1) contemplates a situation where the amount due cannot be reasonably disputed, is settled with respect to amount, ascertained and agreed upon by the parties, or fixed by operation of law. A claim is not for a “sum certain” merely because the claim is stated as a specific dollar amount in the complaint, verified complaint, or affidavit.
Syl. Pt. 3, Farm Family Mutual Ins. Co. v. Thorn Lumber Company, 202 W.Va. 69, 501 S.E.2d 786. Typical “sum certain” situations covered by Rule 55(b)(1) include actions on money judgments, negotiable instruments, or similar actions where the damages can be determined without resort to extrinsic proof. Id. at 74, 501 S.E.2d at 791. If the damages sought by the party moving for the default judgment are for a sum certain, or an amount which can be rendered certain by calculation, no evidentiary hearing on damages Is necessary and the circuit court may proceed to enter a “default judgment” on all issues in the case. Id. at 73, 501 S.E.2d 786 at 790.
While we recognize that circuit courts are generally not required to conduct an evidentiary hearing on damages that are for a sum certain, circuit courts are still required to make the requisite findings within their orders granting default judgment demonstrating, for purposes of appellate review, how the amount entered can be rendered certain by calculation. The circuit court’s orders fail to address precisely how the $88,756.00 figure was ultimately derived. In her Motion for Default Judgment, the Appellee originally requested an award of $228,500.00, a figure three times that which was ultimately awarded. Following that, the circuit court's first order dated September 25, 2006, entered default on liability against Appellant as to Count I of the Complaint, for a sum certain of $108,766.00, without explaining how that figure was derived. The circuit court subsequently amended that amount, pursuant to Appellee’s oral request at the hearing, to the final sum certain award of $88,756.00. The lack of information contained in the circuit court’s orders leaves this Court no way to assess whether the amount awarded is in fact a sum certain, or whether the circuit court abused its discretion in entering sum certain damages in that amount. Because the circuit court's two default judgment orders as to Count I of the Complaint are bereft of adequate findings on this issue, we reverse them accordingly.
Furthermore, we find error in the circuit court’s default judgment order on Count III of the Complaint awarding the Appellee punitive damages. The order does not specify any basis whatsoever for this award. This Court set forth the factors to be considered in awarding punitive damages in Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991).
Moreover, to the extent that the circuit court awarded punitive damages in lieu of attorney’s fees in this case, we find that such action also constitutes reversible error. In Hayseeds v. State Farm, 177 W.Va. 323, 352 S.E.2d 73 (1986), this Court discussed attorney’s fees and punitive damages, and pointed out, in dicta, that punitive damages are often awarded to off-set litigation expenses.
Orders of circuit courts necessarily must contain requisite findings of fact and conclusions of law in entering default judgment orders so that meaningful and adequate appellate review is possible. In the case sub judice, the circuit court’s default judgment orders simply do not contain the requisite information necessary for this Court to properly review the circuit court’s decision.
IV.
CONCLUSION
In conclusion, we find that the circuit court properly entered default as to liability against the Appellant based upon her failure to file an Answer or other responsive pleading. However, because we find that the circuit court’s orders lacked findings of fact and
Affirmed in Part, Reversed in Part, and Remanded.
. Deborah Harper-Adams, [hereinafter "Appellee”], has not filed an appearance nor submitted a response brief in this matter. OneBeacon Insurance Company, a defendant below, has also not filed an appearance or response brief herein.
. By order of the County Commission of Kanawha County, West Virginia entered on November 29, 2000, Appellant was appointed Administratrix to serve under such bond in the ampunt of $20,000.00 issued by OneBeacon Insurance Company as surety thereon.
. Susie Mae Pendleton Smith left as her heirs at law in accordance with the laws of the State of West Virginia her four surviving children Deborah Harper-Adams, Donna Sue Murray, Michael L. Pendleton, and Sharon Pendleton and her grandchild Kendall L. Moore, who is the sole heir of predeceased daughter Margaret Moore. Deborah Harper-Adams’ residence is believed to be Muscogee County, Georgia.
. It is alleged that Appellant collected the valuable personal property of the decedent, reduced it to cash, took it for her own use and benefit, removed it from the State of West Virginia and absconded with it. Among other things, decedent was the owner of an Individual Retirement Account held at Fidelity Investments in the approximate amount of $88,766.00, which had the estate as the beneficiary. Upon her removal as Administratrix, Appellant was ordered to prepare a full and complete accounting of all assets of the estate. It is alleged that she failed and refused to transfer such assets to the Appellee, the new Administratrix.
Specifically, Count I of the Complaint alleges that Appellant embezzled and converted assets from the estate and breached her fiduciary duty as administratrix. However, Count I does not specify a particular amount of damages or particular assets. Rather, Count I generally seeks compensatory, consequential, incidental and punitive damages as can be proven at trial, together with interest, attorney’s fees and costs. Count II of the Complaint alleges that OneBeacon is responsible for all judgments against the Appellant up to and including the face amount of the bond, and that a constructive trust should be imposed upon Appellant’s interest in the Estate. Count III of the Complaint alleges that Appellant willfully, intentionally and fraudulently embezzled the assets of the Estate, and accordingly seeks the imposition of a constructive trust on Appellant’s one-fifth interest in the Estate.
. OneBeacon Insurance Company was served with the Complaint and filed its Answer and Cross-Claim on September 1, 2005.
. In her Motion for Default Judgment, Appellee specifically requested default judgment against Appellant on Count I of the Complaint in the sum certain amount of $228,500.00, plus interest and costs. Additionally, Appellant requested a default on liability against Appellant on Count III of the Complaint, stating that the amount of damages sought on that claim was not a sum certain. Two affidavits signed by Deborah Harper-Adams and Ariella Silberman were submitted in support of the Motion for Default Judgment.
. The Bankruptcy case was dismissed by order entered November 14, 2006.
. In the circuit court's order dated March 21, 2007, the court states that from the time the Complaint was filed there was contact between the Appellant and the circuit court’s staff, who advised the Appellant on several occasions that she needed to file an Answer and that she should retain counsel. The order states that the Appellant was afforded ample opportunity to retain counsel and hearings were continued several times in order to accommodate Appellant's attempts to retain counsel.
. The circuit court’s order gives no explanation for how it arrived at the $108,766.00 award.
. According to the circuit court’s March 21, 2007, order, the Appellant attended the hearing, but still had not filed an Answer or otherwise responsive pleading.
. The circuit court provided that an attorney was to be appointed as special commissioner for the purpose of executing a deed conveying Appellant’s one-fifth interest in the decedent’s domicile, in equal shares, to the remaining heirs of the Estate. In order to ascertain the credit owed to the Appellant, the circuit court further ordered that the decedent’s domicile be appraised by a licensed real estate appraiser. Appellant was also ordered to obtain an appraisal of the decedent's coin collection.
.Rule 55 of the West Virginia Rules of Civil Procedure states, in pertinent part:
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default.
(b) Judgment. Judgment by Default May be Entered as Follows:
(1) By the Clerk. When the plaintiff’s claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the court upon request of the plaintiff and upon affidavit of the amount due shall direct the entry of judgment by the clerk for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant, incompetent person, or convict.
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to*91 the court therefor; but no judgment by default shall be entered against an infant, incompetent person, or convict unless represented in the action by a guardian, guardian ad litem, committee, conservator, curator, or other representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary.
(c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).
. Appellant asserts thirteen assignments of error. Because the first three issues presented are dispositive of this case, we need not address the other issues Appellant has raised.
. Appellant alleges that she also had verbal communication with Appellee’s counsel during the course of litigation. However, because the Appellee has not filed a response herein, and because the record does not reflect what, if any, type of communication occurred between the parties’ counsel prior to the entry of default judgment, we cannot verify that such communication did in fact occur.
. From the record, it appears that Appellant has never filed an Answer or other responsive pleading in this matter.
. The term "appeared in the action,” for purposes of a default judgment under Rule 55(b)(2) of the West Virginia Rules of Civil Procedure, is quite different from an appearance for other purposes. Colonial Insurance Company v. Barrett, 208 W.Va. 706, 709, n. 2, 542 S.E.2d 869, 872, n. 2 (2000). We stated in Farm Family Mutual Ins. Co. v. Thorn Lumber Co., 202 W.Va. 69, 75 n. 9, 501 S.E.2d 786, 792 n. 9 (1998):
An appearance for purposes of Rule 55(b)(2) may consist only of letters or conversations, while a general appearance sufficient to waive an objection to personal jurisdiction requires a greater showing of the defendant's acceptance of the court’s jurisdiction. This liberal construction of the term allows for the resolution of litigation on its merits, not technical pleading rules. See, e.g., Lutomski v. Panther Valley Coin Exchange, 653 F.2d 270, 271 (6th Cir. 1981)(per curiam)(conversations between defendant’s and plaintiff’s counsel concerning suit sufficient to constitute appearance); Charlton L. Davis & Co., P.C. v. Fedder Data Center, Inc., 556 F.2d 308, 309. (5th Cir. 1977)(letters and phone calls from defendant’s counsel constituted appearance); H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 690-92 (D.C.Cir. 1970)(per curiam)(settlement discussions constituted appearance.). See generally, James W. Moore, 10 Moore's Federal Practice, 55.21[2][b][I] (Matthew Bender 3d. ed.).
This Court has also recognized that:
[f]or purposes of the requirement for notice to a defaulting party, prior to a hearing on the default, pursuant to Rule 55(b)(2) of the West Virginia Rules of Civil Procedure, 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.
Syl. Pt. 5, Cales v. Wills, 212 W.Va. 232, 569 S.E.2d 479.
. However, pursuant to Rule 55(c) of the West Virginia Rules of Civil Procedure [1998], ”[f|or good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” Appellant points out that because counsel was obtained just prior to the expiration of the time for appeal, Appellant never filed a Motion to Set Aside Default Judgment before the circuit court.
. A default judgment covered by Rule 55(b)(2) "applies to cases where the amount sued for is not a sum certain. In this situation, after a default is entered, a further hearing is required in order to ascertain the damages.” Farm Family Mutual Ins. Co. v. Thorn Lumber Company, 202 W.Va. 69, 73, 501 S.E.2d 786, 790 (1998)(quoting Coury v. Tsapis, 172 W.Va. 103, 304 S.E.2d 7).
. In Games, we held that:
When the trial court instructs the jury on punitive damages, the court should, at a minimum, carefully explain the factors to be considered in awarding punitive damages. These factors are as follows:
(1) Punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant’s conduct as well as to the harm that actually has occurred. If the defen*94 dant’s actions caused or would likely cause in a similar situation only slight harm, the damages should be relatively small. If the harm is grievous, the damages should be greater.
(2)The jury may consider (although the court need not specifically instruct on each element if doing so would be unfairly prejudicial to the defendant), the reprehensibility of the defendant’s conduct. The jury should take into account how long the defendant continued in his actions, whether he was aware his actions were causing or were likely to cause harm, whether he attempted to conceal or cover up his actions or the harm caused by them, whether/how often the defendant engaged in similar conduct in the past, and whether the defendant made reasonable efforts to make amends by offering a fair and prompt settlement for the actual harm caused once his liability became clear to him.
(3) If the defendant profited from his wrongful conduct, the, punitive damages should remove the profit and should be in excess of the profit, so that the award discourages future bad acts by the defendant.
(4) As a matter of fundamental fairness, punitive damages should bear a reasonable relationship to compensatory damages.
(5) The financial position of the defendant is relevant.
Syl. Pt. 3, 186 W.Va. 656, 413 S.E.2d 897.
. In Hayseeds, Justice Neely recognized, in dicta, that "several courts have held that, even in the absence of a statutory or contractual provision, attorneys’ fees may be awarded to the claimant when the insurer has acted in bad faith, wantonly, or for an oppressive reason.” 177 W.Va. 323, 329, 352 S.E.2d 73, 79.
Reference
- Full Case Name
- STATE of West Virginia ex rel. Deborah HARPER-ADAMS, Administratrix of the Estate of Susie May Pendleton Smith, Below v. Donna Sue MURRAY, Individually and in her Capacity as Former Administratrix of the Estate of Susie Mae Pendleton Smith and Onebeacon Insurance Company, a Corporation, Below Donna Sue Murray
- Cited By
- 3 cases
- Status
- Published