No. 17-1106 - Samuel L. Amoruso, Jr. d/b/a Quality Supplier Trucking, Inc. v. Commerce
and Industry Insurance Company
                                                                                    FILED
                                                                                March 27, 2019
                                                                                    released at 3:00 p.m.
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
WORKMAN, Justice, dissenting:

                This Court “‘may, sua sponte, in the interest of justice, notice plain error.’ Syl.

Pt. 1, in part, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).” Syl. Pt. 1, Cartwright

v. McComas, 223 W.Va. 161, 672 S.E.2d 297 (2008). The criteria for invoking the plain

error doctrine are straightforward: “To trigger application of the ‘plain error’ doctrine, there

must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously

affects the fairness, integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7,

State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Accordingly, although plain error was

not raised by the petitioner, Samuel Amoruso, Jr.,1 the facts and procedural history, as

outlined below, demand its application in this instance. Indeed, it is the interest of justice

and the duty of candor toward our courts that compel me to dissent in this matter.



                 The respondent, Commerce and Industry Insurance Company, issued a

workers’ compensation insurance policy to Q.S.I., Inc.2 On January 22, 2013, the respondent

       1
          It is unclear whether Mr. Amoruso’s middle initial is “R.” or “L.” In the complaint
filed in the circuit court, the respondent used the middle initial “R.” In the parties’ briefs
filed in this Court, they both use the initial “L.”
       2
           A document contained in the appendix record reflects that Mr. Amoruso was the
                                                                           (continued...)

                                                 1
sent a “Legal Collections Notice” addressed to Q.S.I., Inc., demanding payment in the

amount of $36,809 for a final audit premium. Presumably, Q.S.I., Inc. did not remit the

premium payment because the respondent instituted a civil action in the circuit court seeking

to recover that sum. Rather than suing Q.S.I., Inc., however, the respondent named “Samuel

R. Amoruso, Jr. dba Quality Supplier Trucking, Inc.” as the defendant and sought a judgment

against him personally in the amount of $36,809.3



               Mr. Amoruso, acting pro se, filed an answer in which he denied all allegations

against him in the complaint, including the allegation that he personally owed any money to

the respondent. In addition, he repeatedly communicated with the respondent and its counsel

through which he advised that he was not the entity to be charged. Later, while still acting

pro se, Mr. Amoruso answered the respondent’s written discovery requests in which he again


       2
        (...continued)
vice-president and treasurer of Q.S.I., Inc.
       3
         A person or company may not conduct business in West Virginia under an assumed
name until the person or company files a “doing business as” trade registration. See W.Va.
Code § 47-8-2 (2015 & Supp. 2018). A search of the West Virginia Secretary of State’s
website reveals the corporate registration for Quality Supplier Trucking, Inc., which lists
“Samuel R. Amoruso, Jr.” as an officer and a director. See W.Va. R. Evid. 201, in part (“The
court may judicially notice a fact that is not subject to reasonable dispute because it: . . . (2)
can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.”). This same corporate registration also shows “No Records Found” for
“DBAs[.]” Consequently, absent Mr. Amoruso registering as a “d/b/a,” there is no legal
basis for the respondent to have named him as “dba Quality Supplier Trucking, Inc.” in this
action, even assuming, arguendo, that Quality Supplier Trucking, Inc.–not Q.S.I., Inc.–was
the corporate entity that allegedly owed a debt to the respondent.

                                                2
denied owing any money to the respondent and again tried to advance that the respondent had

sued the wrong entity. Thereafter, the respondent filed an amended complaint in this same

action, now claiming that Mr. Amoruso personally owed $64,255 in unpaid premiums.



                When Mr. Amoruso did not file an answer to the amended complaint, the

respondent represents that it filed a motion for default judgment against Mr. Amoruso in the

circuit court. Interestingly, the copy of this motion in the appendix record is not stamped as

having ever been filed in the circuit court, and it does not appear on the circuit court’s

docketing sheet, which lists all pleadings, documents, letters, etc., filed in the action.4 Setting

aside the question of whether the motion was actually filed, there is no indication that Mr.

Amoruso was ever served with a copy of this motion. There is certainly no certificate of

service attached to the copy of the motion in the appendix record.5 Further, Mr. Amoruso

was not copied on the respondent’s January 16, 2016, cover letter to the circuit court clerk

enclosing the motion for filing, although the circuit court judge was copied on the letter. The

problems do not end here.




       4
           A copy of the circuit court’s docketing sheet is included in the appendix record.
       5
          As discussed, infra, Mr. Amoruso was entitled to notice of this motion under West
Virginia Rule of Civil Procedure 55(b)(2). See also Syl., in part, Daniels v. Hall’s Motor
Transit Co., 157 W.Va. 863, 205 S.E.2d 412 (1974) (finding that party who has indicated
interest in pending litigation “‘has appeared’ within the contemplation of Rule 55(b)(2),
R.C.P. and is entitled to notice of an application for default judgment.”).

                                                3
               In the “Affidavit of Indebtedness” attached to the respondent’s motion for

default judgment, the respondent’s affiant avers that $64,255 is “due to National

Union”—not to the respondent. Consequently, even assuming the motion for default

judgment and its supporting affidavits were filed in the circuit court, the only evidence was

that the alleged debt was owed to “National Union,” which is not a named party in this

action. Perhaps more troubling is the “Affidavit for Entry of Default Judgment” signed by

the respondent’s counsel. In his affidavit, counsel states that Mr. Amoruso had “wholly

failed to appear, plead or otherwise defend in this action[.]”6 As is readily evident from the

procedural history summarized above, this statement was plainly false and served to mislead

the circuit court.7



               Notwithstanding these serious problems, the respondent’s proposed order

granting the motion and awarding a default judgment against Mr. Amoruso in the amount of

$64,255 was signed by the circuit court judge on January 16, 2018, the date of the

respondent’s cover letter. This order was later filed in the circuit court’s clerk’s office on

January 28, 2016. The circuit court’s docketing sheet reflects that an abstract of the default


       6
         Although Mr. Amoruso did not file an answer to the amended complaint, an
amended complaint is not a new action. This case is one action, and both the complaint and
the amended complaint bear the same civil action number.
       7
         The Preamble to the West Virginia Standards of Professional Conduct provides that
“[l]awyers owe to opposing counsel, the parties, the courts and the court’s staff a duty of
courtesy, candor, honesty, diligence, fairness and cooperation.”

                                              4
judgment order was mailed to the respondent’s counsel on March 10, 2016, at counsel’s

request. There is no indication that a copy of the order was ever mailed to Mr. Amoruso.



              From the parties’ briefing and the appendix record, it appears that Mr.

Amoruso first learned that a default judgment had been entered against him when the

respondent began its efforts to collect upon the judgment by serving a “Suggestion of

Personal Property” upon Mr. Amoruso and the bank that held his accounts in May 2017,

approximately fifteen months after entry of that judgment. Mr. Amoruso immediately

retained counsel who, just two days later, filed a motion to set aside the default judgment

under West Virginia Rule of Civil Procedure 60(b).8 Because more than a year had passed

since entry of the default judgment before Mr. Amoruso learned of it, many of the bases for

seeking to set aside a judgment under West Virginia Rule of Civil Procedure 60(b) were

already untimely under that rule. It is of great concern that the respondent may have

purposely delayed executing upon its dubious judgment solely to restrict Mr. Amoruso’s




       8
         See W.Va. R. Civ. P. 60(b), in part (“On motion and upon such terms as are just, the
court may relieve a party . . . from a final judgment, order, or proceeding for the following
reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or unavoidable cause; . . .
(3) fraud . . . , misrepresentation, or other misconduct of an adverse party . . . . The motion
shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was entered or taken”).

                                              5
avenues of relief, all the while its judgment accrued interest at the rate of seven percent per

annum.9



              The respondent is not the first party to gain an unfair advantage through its

seemingly purposeful delay. In Hartwell v. Marquez, 201 W.Va. 433, 498 S.E.2d 1 (1997),

this Court addressed counsel’s more than eight-month delay in notifying an insurance carrier

that default and monetary judgments had been entered against it. As this Court appropriately

observed,

                      [t]his delay was apparently calculated to limit Gallant’s
              options under the provisions of W.Va. R. Civ. P. 60(b), which,
              with limited exceptions, requires that a motion to set aside a
              final judgment be filed not more than eight months after the
              entry of the judgment order.10 While there are no statutory or
              court rule provisions prohibiting such a delay, we strongly urge
              practitioners to adhere to the W. Va. Standards of Professional
              Conduct recently adopted by this Court. Standard I.B.9 states
              that “[a] lawyer should not cause any default or dismissal to be
              entered without first notifying opposing counsel, when the
              identity of such counsel is known.”11

Hartwell, 201 W.Va. at 436 n.5, 498 S.E.2d at 4 n.5 (footnotes added). Although Mr.

Amoruso’s newly retained counsel did not cite the specific subsections of Rule 60(b) under

       9
        By the time the respondent began its efforts to execute upon its $64,255 judgment,
the amount owed was $69,972.
       10
         Rule 60(b) was subsequently amended to provide for the one-year-time period. See
supra note 8.
       11
        While Mr. Amoruso was self-represented at this juncture, his identity and location
were known to the respondent’s counsel, who could have provided him with notice.

                                              6
which relief was being sought, his arguments suggested that he was seeking relief under the

provisions that would invoke the one-year-time limitation under Rule 60(b).12 Because the

Rule 60(b) motion was filed more than one year after the default judgment was entered, the

circuit court denied the motion on the basis that it was untimely filed. See W.Va. R. Civ. P.

60(b), in part (providing that motions seeking relief under Rule 60(b)(1) and (3) must be filed

“not more than one year after the judgment . . . was entered[.]”).



                Regardless of the particular provisions that were relied upon in Mr. Amoruso’s

Rule 60(b) motion, there is no question that he was entitled to written notice that a motion

for default judgment had been filed given his appearance and defense in the action. In fact,

West Virginia Rule of Civil Procedure 55(b)(2) expressly provides that “[i]f the party against

whom judgment by default is sought has appeared in the action, the party . . . shall be served

with written notice of the application for judgment at least 3 days prior to the hearing on such

application.”



                We addressed the Rule 55(b)(2) notice requirement in Daniels v. Hall’s Motor

Transit Co., 157 W.Va. 863, 205 S.E.2d 412 (1974), which involved a circuit court’s denial


       12
           It was asserted that the respondent either knew or should have known the proper
entity to sue was Q.S.I., Inc. and, therefore, the respondent had misrepresented salient facts
and perpetrated a fraud upon the circuit court, which would be Rule 60(b)(3), and that
excusable neglect and unavoidable cause applied to the timing of the motion to set aside,
which would be Rule 60(b)(1). See supra note 8.

                                               7
of a motion to set aside a default judgment. The parties had entered into a stipulation,

extending the time by which the defendants had to answer the complaint. When the

defendants failed to file an answer within that stipulated time frame, the plaintiffs filed a

motion for a default judgment but failed to provide notice of their motion to the defendants.

Absent such notice and an opportunity to object, a default judgment was entered against the

defendants in the precise amounts pled in the complaint. The circuit court denied the

defendants’ motion to set aside the default judgment, and the defendants appealed. In

reversing the circuit court, this Court held that

              [w]here a party defendant files a written stipulation extending
              the time for filing an answer, or indicates interest in pending
              litigation against him by any other written matter of record in the
              court file signed by the party, his counsel, or his representative,
              the party ‘has appeared’ within the contemplation of Rule
              55(b)(2), R.C.P. and is entitled to notice of an application for
              default judgment.

Daniels, 157 W.Va. at 863, 205 S.E.2d at 412, syllabus;13 see also Syllabus, Godbey v.

Lanham, 191 W.Va. 233, 445 S.E.2d 174 (1994) (“Where a defendant has answered a

plaintiff’s complaint, a default judgment under Rule 55(b)(2) of the Rules of Civil Procedure

may not be obtained unless the defendant shall have been served with written notice of the


       13
          There is no indication in Daniels that a hearing was held before entry of the default
judgment. Thus, it does not appear that this Court has restricted the notice requirement in
Rule 55(b)(2) to only those matters where a hearing must be held on unliquidated damages.
Regardless, a hearing was warranted in the instant matter where (1) the respondent claimed
the damages were liquidated; (2) Mr. Amoruso contested the amount of the alleged damages;
and (3) the respondent’s affiant averred that the “liquidated” damages were owed not to it,
but to “National Union[,]” a non-party.

                                               8
application for judgment at least three days prior to the hearing on such application.”). As

this Court aptly and succinctly explained in Daniels, “[t]he purpose of this Rule [55(b)(2)]is

to provide a party defendant with a timely opportunity to urge reasons against entry of default

judgment.” Daniels, 157 W.Va. at 865, 205 S.E.2d at 413. In addition,

                       [a] motion for judgment by default against the party who
               has . . . appeared in the action but has not been served with
               written notice of the application for such judgment at least three
               days prior to the hearing as provided by Rule 55(b)(2) of the
               Rules of Civil Procedure should not be granted or such
               judgment entered by the court in the absence of service of such
               notice; and a judgment by default so entered by the court is
               erroneous and will be set aside upon appeal.

Syl. Pt. 3, in part, Investors Loan Corp. v. Long, 152 W.Va. 673, 166 S.E.2d 113 (1969).

Because Mr. Amoruso did not learn of the default judgment until the respondent began

executing upon it some fifteen months after it was entered, he was foreclosed from seeking

relief through an appeal since the time for filing the same had long passed,14 just as the time

period may have passed for seeking relief under Rule 60(b)(1) and (3).



               Once the circuit court was reminded during the hearing held on the motion to

set aside the default judgment of Mr. Amoruso’s appearance and defense in the action, the

circuit court should have recognized its error in having entered an order awarding a default

judgment on the basis that Mr. Amoruso had “failed to appear, plead or otherwise defend this



       14
            See W.Va. R.A.P. 5; W.Va. Code § 58-5-4.

                                               9
action.” Further, because Mr. Amoruso was never provided with the requisite Rule 55(b)(2)

notice of the respondent’s motion for default judgment, he had no opportunity “to urge

reasons against entry of default judgment.” Daniels, 157 W.Va. at 865, 205 S.E.2d at 413.

Inasmuch as the circuit court signed the order granting the default judgment on the same date

that appears on the respondent’s cover letter enclosing the motion, the court would have

known that Mr. Amoruso did not have an opportunity to be heard. Perhaps the circuit court

was blinded to this error given its preconceived opinion of Mr. Amoruso, which was revealed

during the motion hearing when the circuit court stated: “what’s out of line is your client [Mr.

Amoruso] has spent his whole entire career creating these damn companies so he can hide

behind money that he owes people.” The circuit court would have been better served had it

followed the long-standing principle that “[i]f any doubt exists as to whether relief should

be granted, such doubt should be resolved in favor of setting aside the default judgment in

order that the case may be heard on the merits.” McDaniel v. Romano, 155 W.Va. 875, 878,

190 S.E.2d 8, 11 (1972).



              Although the majority contends that Mr. Amoruso has waived this notice issue

by not raising it below, “the raise or waive rule is not absolute.” State v. LaRock, 196 W.Va.

294, 316, 470 S.E.2d 613, 635 (1996) (citation omitted). Thus, a court may take notice of

a plain error affecting a substantial right, even if the claim of error was not properly

preserved. “To affect substantial rights means the error was prejudicial. It must have


                                              10
affected the outcome of the proceedings in the circuit court[.]” Miller, 194 W.Va. at 7, 459

S.E.2d at 118, syl. pt. 9, in part. Indisputably, this is precisely what happened here.15



              Mr. Amoruso was clearly deprived of his substantial right to notice under Rule

55(b)(2), which resulted in a personal judgment against him in excess of $64,000 through the

false representation that he had “wholly failed to appear, plead, or otherwise defend in this

action.” I am also troubled by the respondent’s inability to explain why it instituted this

action against Mr. Amoruso, personally, rather than the corporation with whom it had

contracted, Q.S.I., Inc. This was an issue repeatedly raised by Mr. Amoruso below. When

this Court sought an explanation in this regard during oral argument, the respondent’s

counsel evaded answering the question and, instead, cited the scope of appellate review.16

Lastly, I question the circuit court’s entry of the default judgment when the respondent’s

affidavit filed in support of the motion indicated that the alleged debt was owed to “National

Union,” a non-party. In short, had Mr. Amoruso been provided with notice, he would have


       15
            I agree with the reasoning of Justice Hutchison in his dissenting opinion in this
matter. It is clear that under the facts and circumstances of this case, the failure to provide
Mr. Amoruso with the requisite notice under Rule 55(b)(2) denied him an opportunity to be
heard, which is the essence of due process. Unquestionably, “[t]he most fundamental due
process protections are notice and an opportunity to be heard.” State ex rel. Bd. of Educ. of
Cty. of Putnam v. Beane, 224 W.Va. 31, 35, 680 S.E.2d 46, 50 (2009).
       16
          Absent any explanation being offered, perhaps the respondent instituted this action
as it did to facilitate reaching Mr. Amoruso’s personal assets. Had the respondent sued
Q.S.I., Inc., it could not have reached Mr. Amoruso’s personal assets without first meeting
the legal strictures for piercing Q.S.I., Inc.’s corporate veil.

                                              11
been afforded the opportunity to argue against the entry of default judgment on these and/or

other bases, all of which warranted relief under Rule 60(b).



              Based on the above, I firmly believe that the combination of these plain errors

and obstreperous misrepresentations has seriously the fairness of the judicial process and Mr.

Amoruso’s substantial rights in this action. For these reasons, I respectfully dissent to the

decision reached by the majority of the Court in this matter.




                                             12
