Tudor's Biscuit World of America v. Critchley

729 S.E.2d 231, 229 W. Va. 396, 2012 WL 2226442, 2012 W. Va. LEXIS 304
CourtWest Virginia Supreme Court
DecidedJune 13, 2012
DocketNo. 11-0543
StatusPublished
Cited by121 cases

This text of 729 S.E.2d 231 (Tudor's Biscuit World of America v. Critchley) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tudor's Biscuit World of America v. Critchley, 729 S.E.2d 231, 229 W. Va. 396, 2012 WL 2226442, 2012 W. Va. LEXIS 304 (W. Va. 2012).

Opinion

PER CURIAM:

The petitioner herein and defendant below, Tudor’s Biscuit World of America [hereinafter “Tudor’s”], appeals the circuit court’s March 1, 2011, order denying its motion pursuant to West Virginia Rule of Civil Procedure 59(e). In its W.V.R.C.P. 59(e) motion, Tudor’s moved the circuit court to alter or amend its December 4, 2009, order denying its motion pursuant to West Virginia Rule of Civil Procedure 60(b)(4) to set aside the default judgment rendered against it. Tudor’s asserts that the circuit court erred in its application of the “reasonable time” requirement set forth in W.V.R.C.P. 60(b) to its motion to set aside the default judgment, arguing that such timeliness requirement is inapplicable to void judgments. Tudor’s further argues that the circuit court improperly applied and weighed the factors set forth in Parsons v. Consolidated Gas Supply Corporation, 163 W.Va. 464, 256 S.E.2d 758 (1979), in denying its motion for relief from judgment. For the reasons set forth below, we agree and reverse and remand this case for further proceedings below.

I. FACTS AND PROCEDURAL HISTORY

On September 2, 2002, respondent herein and plaintiff below, Della Critchley [hereinafter “Critchley”], fell while descending a set of stairs at her place of employment, Tudor’s Biscuit World, in Fayette County, West Virginia. Based upon the record before us, it appears undisputed that Critchley was an employee of KOR, Inc., a franchisee of Tudor’s Biscuit World of America, which owns and operates the Fayette County restaurant where the alleged injury occurred. Subsequent to her fall, Critchley filed a workers’ compensation claim against KOR, Inc.1 Thereafter, on June 10, 2003, Critchley filed a complaint in the Circuit Court of Raleigh County against Tudor’s alleging that she was “employed by the Defendant, Tudor’s” and asserting a “deliberate intent” claim against it pursuant to W. Va.Code § 23-4-2(c)(2) [400]*400(2003).2 Her actual employer, KOR, Inc., was not named in the lawsuit.

On June 12, 2003, the summons and complaint was served on the West Virginia Secretary of State as attorney-in-fact for Tudor’s. The Secretary of State twice attempted delivery of the summons and complaint on Tudor’s, but each attempt was returned as “unclaimed.” The returns of service reflecting the summons and complaint as “unclaimed” were filed with the Raleigh County Circuit Clerk on July 11, 2003. Notwithstanding, on August 8, 2003, Critchley filed a motion for default; in support of her motion, Critchley submitted the affidavit of her attorney which averred that Tudor’s had been “duly served with process.” An order granting default was entered the same day. Over one year and one month later, on September 29, 2004, Critehley’s counsel allegedly wrote to the president of Tudor’s, John Tudor [hereinafter “Mr. Tudor”], at his home address, providing a copy of the default order and inquiring if he had any interest in settling the case. The letter was signed for by Lydia Tudor. The next day, on September 30, 2004, Critchley’s counsel allegedly sent the same letter to Mr. Tudor at Tudor’s corporate address, which letter was signed for by James Heighten, a corporate accountant [hereinafter “Mi'. Heighten”]. According to the circuit court's order, the letter received by Mi'. Heighten was returned with an unsigned note dated October 4, 2004, stating “[t]his is not an employee of Tudor’s Biscuit World of America. Please notify the Nitro WV office. Mr. John Tudor has left voicemail with your office and also the Nitro office. Thank you.”3

Approximately one year and four months later on February 23, 2006, a hearing on damages was conducted; the record contains no evidence that a notice of the damages hearing was filed, nor any evidence that Tudor’s was given notice of the hearing. Tudor’s did not appear at the hearing. The circuit court awarded judgment in the amount of $264,776.00. For reasons that are unclear from the record, a judgment order was not entered until almost two years and seven months later on September 2, 2008. For approximately the next year, respondent’s counsel initiated activity designed to execute on the judgment, which activity culminated in a “Summons in Aid of Execution” being issued on September 30, 2009, commanding Mr. Tudor to appear and answer inquiries in aid of execution. The summons was personally served on Mr. Tudor on October 2, 2009 — a little over three and a half years after the judgment was awarded and just over five years after receipt of the letter from Critchley’s counsel advising of the default.

Just under two weeks later on October 16, 2009, making its first appearance in the action, Tudor’s filed a “Motion to Set Aside Default Judgment” pursuant to W.V.R.C.P. 60(b)(4). Tudor’s argued that Critchley failed to effectuate proper service of process and, as a result, the default judgment was void. The circuit court denied Tudor’s motion by order dated December 4, 2009. In its order, the circuit court found, as a matter of law, that service on Tudor’s had been ineffective and therefore the judgment was void.4 However, the court then noted the language of W.V.R.C.P. 60(b) requiring motions pursuant to the Rule to be filed “within a reasonable time,” as well as easelaw applying a timeliness requirement to such motions. The circuit court found that “the defendant was charged with the knowledge of the subject default judgment on September 30, 2004 [the date the letter from Critchley’s counsel to the corporate address was received by James Heighten]. On that date, the defendant corporation knew, or reasonably should have known, that the plaintiff [401]*401had obtained a judgment by default against Tudor’s Biscuit World of America, Inc.” (second emphasis added). Accordingly, the circuit court found that over five years elapsed between notice of the existence of the “default judgment” and Tudor’s motion to set aside the default judgment; as a result, the circuit court found that Tudor’s did not file its motion within a reasonable period of time. In addition, the court examined the factors set forth in Parsons v. Consolidated Gas Supply Corporation, 163 W.Va. 464, 256 S.E.2d 758 (1979) [hereinafter the “Parsons factors”]5 which it found weighed against granting Tudor’s motion.

On December 18, 2009, Tudor’s filed a motion pursuant to W.V.R.C.P. 59(e) to alter or amend the December 4, 2009 order denying its motion to set aside the default. Thereafter, and throughout the entirety of 2010, it appears as though the court attempted to encourage the parties to settle the case via a failed mediation and a court-ordered Settlement Conference. At the Settlement Conference on September 8, 2010, Tudor’s brought to the circuit court’s attention the recently issued case of Beane v. Dailey, 226 W.Va. 445, 701 S.E.2d 848 (2010)(per curiam), which Tudor’s argued obviated the reasonable time requirement in the ease of void default judgments, requiring the circuit court to set the default judgment against it aside. The circuit court permitted the parties to brief the timeliness issue again in light of Beane, but ultimately denied Tudor’s motion to alter the prior order denying relief from the default judgment. The circuit court found that timeliness was not at issue in Beane and that the plain language of Rule 60(b) and applicable easelaw required Rule 60(b)(4) motions to be filed within a reasonable time.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Timothy D. v. Rachelle D.
Int. Ct. of App. of W.Va., 2025
Christopher M. v. Lucia M.
Int. Ct. of App. of W.Va., 2025
James B. v. Kristin R.
Int. Ct. of App. of W.Va., 2025
Jessica Bailey v. Robert Smith
Int. Ct. of App. of W.Va., 2025
DaShanda G. v. Shane G.
Int. Ct. of App. of W.Va., 2025
Siraaj M. v. Stephanie M.
Int. Ct. of App. of W.Va., 2025
Shaheen Shafii v. Kaden Thomas
Int. Ct. of App. of W.Va., 2025
Cynthia White v. Mark White
Int. Ct. of App. of W.Va., 2024
Anna M. v. Desmond M.
Int. Ct. of App. of W.Va., 2024

Cite This Page — Counsel Stack

Bluebook (online)
729 S.E.2d 231, 229 W. Va. 396, 2012 WL 2226442, 2012 W. Va. LEXIS 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tudors-biscuit-world-of-america-v-critchley-wva-2012.