                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


Dale Rife,
Respondent Below, Petitioner                                                       FILED
                                                                              November 18, 2016
vs) No. 15-0975 (Wyoming County 14-C-139)                                         RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Margaret A. Shields and Steve A. Rife,
Petitioners Below, Respondents


                                MEMORANDUM DECISION
        Petitioner Dale Rife, by counsel Dennie S. Morgan, Jr., appeals the September 2, 2015,
order of the Circuit Court of Wyoming County denying his motion to alter or amend judgment.1
Respondents Margaret Ann Shields and Steve A. Rife, by counsel Thomas H. Evans, III, filed a
response in support of the circuit court’s order. Petitioner filed a reply. Petitioner argues that the
circuit court erred in making findings of fact not supported in the record; in improperly applying
West Virginia Code § 37-4-3 to the facts of this case; and in failing to establish personal
jurisdiction over petitioner.

         This 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, we find that the circuit court erred with respect to its denial of petitioner’s motion to
alter or amend judgment. For these reasons, a memorandum decision reversing the circuit court’s
order is appropriate under “limited circumstances” of Rule 21(d) of the Rules of Appellate
Procedure.

        Petitioner and respondents are each owners of a one-third undivided interest in 0.42 acres
of property in Baileysville District, Wyoming County.2 In February of 2014, respondents
obtained an appraisal for the subject property and identified a buyer. Petitioner would not agree
to the sale of the property.3 On September 3, 2014, respondents filed a petition to partition real
estate seeking partition through sale of the property.

       1
       Petitioner styled his motion as a “motion for re-hearing” pursuant to Rule 59(e) of the
West Virginia Rules of Civil Procedure.
       2
       None of the parties reside upon or occupy the property at issue. As it is uninhabited,
respondents alleged that the property was subject to waste, unreasonable maintenance, and
unreasonable deterioration in value.
       3
           Petitioner professed a sentimental attachment to the property.


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        A hearing was scheduled on respondents’ petition for September 24, 2014. At this
hearing, respondents’ counsel alleged that service of the partition petition had been attempted
upon petitioner, a resident of North Carolina, but was unsuccessful.4 Respondents’ counsel
indicated that service by publication would be attempted, and another hearing on the petition for
partition was set for December 17, 2014.

       On December 3, 8, and 16, 2014, a notice of the December 17, 2014, hearing was
published in the Statesville Record and Landmark Newspaper.5 The notice was titled “Notice to
Dale Rife” and advised of the date, time, and location of the December 17, 2014, hearing.
Despite this notice, petitioner did not appear at the December 17, 2014, hearing.

        While no transcript of any court proceeding held in this case before the Wyoming County
Circuit Court on December 17, 2014, was included in the record provided to this Court,
respondents contend that a brief hearing was conducted on that date for the purpose of
appointing three commissioners to complete an appraisal of the property pursuant to West
Virginia Code § 37-4-3. The appointment of the commissioners was formalized by order dated
January 15, 2015. The next hearing on the respondents’ petition for partition was set for March
3, 2015, and rescheduled to April 1, 2015. Notice of the April 1, 2015, hearing was again made
to petitioner through publication. However, the publication was not made in any North Carolina
newspaper or other newspaper serving the geographic area where petitioner allegedly resides, but
was made in a Wyoming County newspaper titled the Independent Herald.6

         On March 31, 2015, the commissioners’ report was filed. In their report, the
commissioners found that the property at issue could not be partitioned in kind and determined
the total value of the property to be $36,000.7 A final hearing on respondents’ petition for
partition was held on April 1, 2015. It is undisputed that petitioner did not attend the hearing and
made no formal appearance in the case, by counsel or otherwise, prior to this hearing.

       4
        Respondents allege that service of the petition to partition was attempted through both
regular mail and by process server.
       5
         Respondents argue that the Statesville Record and Landmark Newspaper is a newspaper
serving Airedale County, North Carolina, the geographic area where petitioner resides. However,
petitioner alleges that he resides in Huntersville, North Carolina, approximately 28 miles south
of Statesville. Huntersville, North Carolina is in Mecklenburg County, not Airedale County.
       6
         Like the previous order of publication, the legal advertisement appearing in the
Independent Herald (on March 11 and 18, 2015) clearly identified the case (including
petitioner’s name) and advised of the date, time, and location of the April 1, 2015, hearing.
Respondents’ counsel advised the circuit court that publication was made in Wyoming County,
as petitioner had “many relatives here that could have given him notice.”
       7
        The value of the property determined by the commissioners is the same value of the
property determined by an appraiser hired by respondents.



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        On July 6, 2015, petitioner made his first appearance in this case and filed a motion for
re-hearing, pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure.8 In his motion,
petitioner stated that he “has now become aware that this civil action has been filed and that
there has been adverse action taken against his interest. …” On August 5, 2015, a hearing was
held on petitioner’s Rule 59(e) motion, at which time the court heard the arguments of counsel
and took the matter under advisement.

        On August 27, 2015, the circuit court entered its order from the April 1, 2015, hearing
and formally granted a default judgment against petitioner and in favor of respondents. In its
order, the circuit court ruled that respondents acquired all of the one-third outstanding interest
owned by petitioner and obtained quiet title to the whole of the property at issue, at the value
established by the commissioners. The court directed that payment of one-third of the value of
the property be deposited in an interest-bearing account and that the remainder of the proceeds
be held for petitioner. On September 2, 2015, the circuit court entered its order denying
petitioner’s Rule 59(e) motion.9 It is from the circuit court’s September 2, 2015, order that
petitioner now appeals.

       We have long held that

              “[t]he 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., 204 W.Va. 430, 513 S.E.2d 657 (1998).

       Syl. Pt. 2, West Virginia Dep’t of Transp., Div. of Highways v. Dodson Mobile Homes
Sales and Servs., Inc., 218 W.Va. 121, 624 S.E.2d 468 (2005).

        In the case sub judice, the “underlying judgment” is the circuit court’s award of default
judgment to respondents. “A motion to vacate a judgment made pursuant to Rule 60(b), W.Va.
R.C.P., is addressed to the sound discretion of the court and the court’s ruling on such motion
will not be disturbed on appeal unless there is a showing of an abuse of such discretion.” Syl. Pt.




       8
        In his motion for “re-hearing,” petitioner references Rule 59(e) of the West Virginia
Rules of Civil Procedure as the basis for his motion. However, we note that Rule 59(e) permits
motions to alter or amend judgments and does not reference “re-hearing.”
       9
         While petitioner listed Rule 59(e) of the West Virginia Rules of Civil Procedure as the
basis for his motion, we note that given the circuit court’s subsequent award of default judgment
against petitioner, petitioner’s motion was proper under Rule 60(b)(4) of the West Virginia Rules
of Civil Procedure (as it seeks the ultimate relief of a determination that the judgement entered
against him was void) and not Rule 59(e).



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5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974). 10 We have held that “[a]n appellate
court should find an abuse of discretion only when the trial court has acted arbitrarily or
irrationally.” State v. Beard, 194 W.Va. 740, 748, 461 S.E.2d 486, 494 (1995). Further, we have
ruled that an appellate court may reverse a circuit court’s ruling for an abuse of discretion if “a
material factor deserving significant weight is ignored, when an improper factor is relied upon,
or when all proper and no improper factors are assessed but the circuit court makes a serious
mistake in weighing them.” Gentry v. Magnum, 195 W.Va. 512, 520 n.6, 466 S.E.3d 171, 179
n.6 (1995).

        We first address petitioner’s argument that the circuit court committed reversible error in
denying his motion because the circuit court lacked personal jurisdiction over petitioner. As we
stated in Leslie Equipment Company v. Wood Resources Company, L.L.C., et al, 224 W.Va. 530,
533, 687 S.E.2d 109, 112 (2009),

       [t]he validity of any court ruling is dependent on two jurisdictional predicates:
       “To enable a court to hear and determine an action, suit or other proceeding it
       must have jurisdiction of the subject matter and jurisdiction of the parties; both
       are necessary and the absence of either if fatal to its jurisdiction.” Syl. Pt. 3, State
       ex rel. Smith v. Bosworth, 145 W.Va. 753, 117 S.E.2d 610 (1960).

       We have long recognized that

              [t]he Due Process Clause of the Fourteenth Amendment to the United
       States Constitution operates to limit the jurisdiction of a state court to enter a
       judgment affecting the rights or interests of a nonresident defendant. This due
       process limitation requires a state court to have personal jurisdiction over the
       nonresident defendant.

Syl. Pt. 1, Pries v. Watt, 186 W.Va. 49, 410 S.E.2d 285 (1991).

        Consequently, a determination that the circuit court lacked personal jurisdiction would
render the default judgment issued against petitioner void and unenforceable. See Leslie Equip.
Co., 224 W.Va. at 533, 687 S.E.2d at 112 (citing Syl. Pt. 1, Schweppes U.S.A. Ltd. v. Kiger, 158
W.Va. 794, 214 S.E.2d 867 (1975) (holding that order rendered without personal and subject
matter jurisdiction renders decree “utterly void”)). We have further held that personal
jurisdiction does not “arise by operation of law when a nonresident defendant is constructively
served with process pursuant to the provisions of Rule 4 of the West Virginia Rules of Civil
Procedure.” Leslie Equip. Co., 224 W.Va. at 536, 687 S.E.2d at 115.



       10
         We note that “[a] motion to vacate a judgment made pursuant to Rule 60(b), West
Virginia Rules of Civil Procedure. is addressed to the sound discretion of the court and the
court’s ruling on such motion will not be disturbed on appeal unless there is a showing of an
abuse of such discretion.” Syl. Pt. 2, Old Republic Ins. Co. v. O’Neal, 237 W.Va. 512, 788
S.E.2d 40 (2016) (citing Syl. Pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974)).


                                                  4

        Here, like the appellants in Leslie Equip. Co., petitioner contends that the manner in
which respondents sought to effect service of process on him deprived the trial court of the
necessary personal jurisdiction to enter an enforceable default judgment against him.
Respondents herein relied solely on the constructive service provisions of Rule 4 of the West
Virginia Rules of Civil Procedure (specifically, service by publication), to serve petitioner, as
opposed to West Virginia Code § 56-3-33, the long-arm statute.11 By failing to avail themselves
of the “statutory method that vests our trial court with in personam jurisdiction over nonresident
defendants,” we find that the constructive service effected by respondents upon petitioner led to
a default judgment that is void and unenforceable. Accordingly, the circuit court erred in denying
petitioner’s motion.

        We decline to address the remainder of petitioner’s assignments of error, because they do
not relate to whether the circuit court had personal jurisdiction over petitioner, as this argument
is dispositive of the claims between the parties herein.12 For the foregoing reasons, we reverse
the circuit court’s September 2, 2015, order and remand this case with directions to vacate the
August 27, 2015, default judgment order against petitioner.

                                                          Reversed and remanded, with directions.



ISSUED: November 18, 2016




       11
         We note that our decision in this case is limited to recognizing this Court’s ruling in
Leslie Equip. Co. that personal jurisdiction that arises by operation of law pursuant to the
provisions of West Virginia Code § 56-3-33 does not simply arise when constructive service is
effected under Rule 4. Because respondents herein sought to establish personal jurisdiction based
on the constructive service provisions of Rule 4 alone, there is no factual development in the
record to properly determine jurisdiction pursuant to West Virginia Code § 56-3-33.
       12
          On appeal, petitioner raises six assignment of error. First, petitioner alleges that the
circuit court erred in making findings of fact that were not supported by evidence. Second,
petitioner argues that the circuit court erred in denying his motion for rehearing despite petitioner
having no reasonable notice of the hearing. Third, petitioner contends that the circuit court
committed reversible error when it denied his motion for rehearing despite knowing that the
commissioners appointed by the court were not disinterested or disqualified. Fourth, petitioner
alleges that the circuit court committed reversible erred by allowing the amount of $36,000 to
stand as a basis for judgment. Fifth, petitioner argues that the circuit court erred in finding that
the commissioners’ report was proper and that petitioner failed to timely object to said report.
Sixth, petitioner contends that the circuit court committed reversible error when it denied his
motion for rehearing when the circuit court lacked personal jurisdiction over petitioner.



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CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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