                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Jamie Crabtree,
Defendant Below, Petitioner                                                          FILED
                                                                                  June 3, 2020
vs.) No. 18-1070 (Mineral County 18-C-9)                                       EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
KELCO Federal Credit Union,
Plaintiff Below, Respondent



                               MEMORANDUM DECISION


        Petitioner Jamie Crabtree, self-represented, appeals the November 2, 2018, order of the
Circuit Court of Mineral County finding petitioner in contempt of court and directing the Sheriff
of Mineral County to take petitioner into custody if petitioner failed to turn over a 2010 Harley
Davidson motorcycle to Respondent KELCO Federal Credit Union by 9:00 p.m. on November 5,
2018. Respondent, by counsel Tara M. Yuzy Collier, filed a response in support of the circuit
court’s order. Petitioner filed a reply.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        On May 14, 2018, respondent filed a complaint in the Circuit Court of Mineral County,
alleging that in 2015, petitioner purchased a 2010 Harley Davidson motorcycle through a loan
obtained from respondent in the amount of $8,500 and used the motorcycle as collateral for the
loan. In the complaint, respondent further alleged that petitioner missed the monthly loan payment
for November of 2017 and that it sent petitioner a notice of default on December 27, 2017, to
which she failed to respond. Finally, respondent alleged that on January 9, 2018, its agent
attempted to repossess the motorcycle but was prevented from doing so “due to resistance from an
acquaintance of [petitioner].”


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        On June 1, 2018, respondent filed an affidavit of service from a process server, stating that
the complaint and summons were served on petitioner pursuant to Rule 4(d)(1)(B) of the West
Virginia Rules of Civil Procedure, which generally permits service on an individual by delivering
a copy of the complaint and summons to a family member, over sixteen years of age, at that
individual’s dwelling place. According to the affidavit of service, the process server delivered the
complaint and summons to Fernando Smith, who was “of suitable age [(forty-five to fifty years
old)] and discretion in that . . . the relationship to [petitioner] is (Boyfriend),” and Mr. Smith
“accepted [the] documents on [petitioner]’s behalf and also confirmed residency of [petitioner],
who was also present.” (Some underlined emphasis omitted). Petitioner identifies Mr. Smith as
her estranged husband.

        After petitioner’s failure to file an answer to the complaint, respondent filed a motion for
default judgment, which the circuit court granted by order entered on June 4, 2018. In that order,
the circuit court awarded respondent a judgment in the amount of $4,882.58, plus post-judgment
interest and court costs and fees, and directed the Sheriff of Mineral County to repossess the
motorcycle on respondent’s behalf. The sheriff attempted the repossession on June 14, 2018, but
was informed by Mr. Smith that he moved the motorcycle “to another [S]tate prior to [the] issuance
of [the June 4, 2018,] order and he refused to provide [the motorcycle’s] exact location[.]”

        On July 26, 2018, respondent filed a motion asking the circuit court to find petitioner in
contempt of court and direct her to disclose the motorcycle’s location so that it could be
repossessed. On September 7, 2018, the circuit court entered a notice of hearing for September 20,
2018. However, petitioner filed a motion for a continuance on September 14, 2018, and also asked
for a postponement at the September 20, 2018, hearing. Accordingly, the circuit court held a
hearing on respondent’s motion for contempt on November 2, 2018. By order also entered on
November 2, 2018, the circuit court found petitioner in contempt of court and directed the sheriff
to take petitioner into custody if petitioner failed to turn over the motorcycle to respondent by 9:00
p.m. on November 5, 2018. On November 26, 2018, petitioner filed a motion for reconsideration
of the November 2, 2018, order, which the circuit court denied by order entered on December 18,
2018. However, the record reflects that the circuit court has not yet enforced its contempt finding
against petitioner. Petitioner now appeals the circuit court’s November 2, 2018, order directing her
to turn over the motorcycle or be incarcerated for contempt of court.

        In Syllabus Point 2 of Kinsinger v. Pethel, 234 W. Va. 463, 766 S.E.2d 410 (2014), we
held:

                “In reviewing the findings of fact and conclusions of law of a circuit court
        supporting a civil contempt order, we apply a three-pronged standard of review.
        We review the contempt order under an abuse of discretion standard; the underlying
        factual findings are reviewed under a clearly erroneous standard; and questions of
        law and statutory interpretations are subject to a de novo review.” Syl. Pt. 1, Carter
        v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996).

Here, the contempt order is civil in nature given that the circuit court provided petitioner with the
means to purge herself of the contempt. See Syl. Pt. 9, in part, Eastern Associated Coal Corp. v.
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Doe, 159 W. Va. 200, 220 S.E.2d 672 (1975) (“In a contempt proceeding, whenever the defendant
may effect [her] release from jail by performing such act or acts as the court directs, the contempt
is civil in nature[.]”)

        On appeal, petitioner raises several issues. “This Court will not pass on a nonjurisdictional
question which has not been decided by the trial court in the first instance.” Watts v. Ballard, 238
W. Va. 730, 735 n.7, 798 S.E.2d 856, 861 n.7 (2017) (quoting Syl. Pt. 2, Sands v. Sec. Trust Co.,
143 W. Va. 522, 102 S.E.2d 733 (1958)). Here, we decline to consider two of petitioner’s alleged
errors because she failed to properly present those issues to the circuit court. First, petitioner argues
that the circuit court was biased against her. The proper method of seeking a judge’s
disqualification is to file a motion pursuant to Rule 17.01 of the West Virginia Trial Court Rules,
and there is no indication in the record that petitioner filed such a motion in this case. Second,
petitioner argues that the circuit court failed to address her claim that respondent’s agent breached
the peace when attempting to repossess the motorcycle on January 9, 2018. Petitioner further
argues that she raised that issue in her September 14, 2018, motion for a continuance. However,
given petitioner’s failure to file any pleading prior to the entry of default judgment, we find that
petitioner did not make any counterclaim that the circuit court was required to consider.

        Petitioner argues that the circuit court had neither personal jurisdiction over her nor
jurisdiction over the subject matter (the motorcycle) and further argues that the circuit court abused
its discretion in finding her in contempt of court. We first address whether the circuit court had
personal jurisdiction over petitioner due to the service of the complaint and summons upon Mr.
Smith, whom she identifies as her husband. In State ex rel. West Virginia Truck Stop, Inc. v.
Belcher, 156 W. Va. 183, 187, 192 S.E.2d 229, 232 (1972), we found that “[t]o hear and determine
an action[,] the court must have jurisdiction of the parties.” See Syl. Pt. 3, Beane v. Dailey, 226 W.
Va. 445, 701 S.E.2d 848 (2010) (holding that jurisdiction does not exist where service of process
is defective). While petitioner alleges that service was defective, she points to nothing in the record
to contradict the statements set forth in the affidavit of service that the requirements of Rule
4(d)(1)(B) were met. 1 See State v. Honaker, 193 W. Va. 51, 56 n.4, 454 S.E.2d 96, 101 n.4 (1994)
(“We will take as non[-]existing all facts that do not appear in the designated record[.]”). 2
Therefore, we find that the complaint and summons were properly served on petitioner pursuant
to Rule 4(d)(1)(B).

        We find that petitioner’s last two arguments are intertwined due to her position that the
circuit court abused its discretion in finding her in contempt when she does not know the out-of-

        1
        Rule 4(d)(1)(B) of the Rules of Civil Procedure provides that “[s]ervice upon an individual
other than an infant, incompetent person, or convict may be made by: . . . (B) Delivering a copy
of the summons and complaint at the individual’s dwelling place or usual place of abode to a
member of the individual’s family who is above the age of sixteen (16) years and by advising such
person of the purport of the summons and complaint.”
        2
        By order entered on January 23, 2019, we granted petitioner’s motion for a designated
record and directed the Circuit Clerk of Mineral County to transmit the entire record to this Court.
We received the record on March 14, 2019.
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state location of the motorcycle. Petitioner further argues that the motorcycle was not in this State
at the time respondent filed its action against her. Respondent counters that petitioner is the
motorcycle’s registered owner and there is no indication that she has reported it stolen. Respondent
further argues that there is evidence that petitioner’s husband moved the subject motorcycle to
another State after respondent sought the aid of the court to repossess it.

         In Painter v. Ballard, 237 W. Va. 502, 507, 788 S.E.2d 30, 35 (2016), we reiterated that
jurisdiction was “the inherent power of a court to decide a case.” (citing Sidney C. Smith Corp. v.
Dailey, 136 W. Va. 380, 388, 67 S.E.2d 523, 527 (1951)) (Internal quotations and additional
citation omitted). In addition to personal jurisdiction, the other element constituting jurisdiction is
jurisdiction over the subject matter. Sidney C. Smith Corp., 136 W. Va. at 386, 67 S.E.2d at 526.
Here, based on our review of the record, we find that the motorcycle was in this State at the time
of the filing of respondent’s action, and, therefore, reject petitioner’s argument that the circuit court
did not have subject matter jurisdiction. We further find that the record indicates that petitioner
maintains control of the motorcycle. Accordingly, we conclude that the circuit court did not abuse
its discretion in finding petitioner in civil contempt given its willingness to allow petitioner to
purge herself by turning over the motorcycle. See Syl. Pt. 9, Doe, 159 W. Va. at 201-02, 220 S.E.2d
at 675.

        For the foregoing reasons, we affirm the circuit court’s November 2, 2018, order directing
petitioner to turn over the motorcycle or be incarcerated for contempt of court.

                                                                                              Affirmed.


ISSUED: June 3, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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