                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Amy R. Rhoe (formerly Wise),                                                      FILED
Petitioner Below, Petitioner                                                    December 4, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0108 (Berkeley County 12-C-AP-6)                                    OF WEST VIRGINIA



Berkeley County Fire Board,
Respondent Below, Respondent

                              MEMORANDUM DECISION

        Petitioner Amy R. Rhoe1 (formerly Wise), appearing pro se, appeals the order of the
Circuit Court of Berkeley County, entered January 4, 2013, that denied petitioner’s appeal from
the March 28, 2012 order of the Magistrate Court of Berkeley County that denied her motion to set
aside a default judgment entered January 26, 2010. Respondent Berkeley County Fire Board (“the
Board”), by counsel Norwood Bentley, filed a response. 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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion. For the reasons expressed below, the decision is reversed and this case is remanded with
directions to vacate the January 26, 2010 default judgment.

        On April 10, 2009, the Board filed an action against petitioner in the Magistrate Court of
Berkeley County for past due fire service fees for the years 2004 through 2007. The Board alleged
that the amount due was $174.50. The Board attempted to serve process on petitioner by certified
mail pursuant to Rule 4(d)(1)(D) of the West Virginia Rules of Civil Procedure.2 However, the
certified mail was returned as “not deliverable as addressed.” Thereafter, service was
accomplished through publication.

        On January 25, 2010, the Board filed an affidavit of default judgment with the magistrate
court that indicated petitioner had been served on May 27, 2009, by publication, and as of the date
of the affidavit, had not answered its complaint. On January 26, 2010, the magistrate court granted

       1
           Rhoe is petitioner’s married name.
       2
         Pursuant to Rule 3 of the West Virginia Rules of Civil Procedure for Magistrate Courts,
Rule 4 of the West Virginia Rules of Civil Procedure governs service of process in civil actions in
magistrate court.
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the Board a default judgment against petitioner in the amount of $174.50. Subsequently, on
November 21, 2011, a writ of execution was issued to the Berkeley County Sheriff to seize and sell
items of petitioner’s personal property equivalent to $362.17, the amount then due given unpaid
interest and court courts. A notation on the writ of execution indicates that it was stayed on March
9, 2012, pending petitioner’s attempt to have the default judgment set aside.

         According to petitioner, she first learned of the default judgment in January of 2012 when a
sheriff’s deputy arrived at her residence to execute the writ. Petitioner subsequently filed a motion
to set aside the default judgment on February 10, 2012. The magistrate court denied the motion on
March 28, 2012. Petitioner appealed the denial of her motion de novo to the circuit court.

         Following a June 12, 2012 hearing, the circuit court denied petitioner’s appeal of the
magistrate court’s denial of the motion to set aside the default judgment on January 4, 2013. The
circuit court found that in order to have the default judgment set aside under Rules 55(c) and 60(b),
petitioner would first have to show that she had a meritorious defense to the Board’s claim that she
owed past-due fire service fees. The circuit court determined that petitioner “admittedly and
completely lacks any evidence that she made payment of the required fire fees during the years in
question[.]” Secondly, the circuit court noted “[petitioner’s] tardiness in asking for relief under any
and all pertinent Rules and statutes[.]” Petitioner now appeals the circuit court’s order.

        “We review a decision by a trial court to award a default judgment pursuant to an abuse of
discretion standard.” Leslie Equip. Co. v. Wood Res. Co., L.L.C., 224 W.Va. 530, 532, 687 S.E.2d
109, 111 (2009). In addition, we decline to address any arguments that do not relate to (1) whether
the January 26, 2010 default judgment is void because of insufficient service; and (2) whether
petitioner moved to set aside the default judgment within a reasonable time. See id, Syl. Pt. 5
(setting forth the requirements that must be met by a movant under Rule 60(b)(4)).3

        On appeal, petitioner argues that the default judgment was void because service was
insufficient to confer in personam jurisdiction over her. See Syl. Pt. 3, Beane v. Dailey, 226 W.Va.
445, 701 S.E.2d 848 (2010) (“A default decree rendered upon a defective substituted service of
process is void for want of jurisdiction.”) (Internal quotations and citations omitted.). The Board
concedes that service by publication was insufficient to provide the magistrate court with in
personam jurisdiction over petitioner. Rule 4(e) and West Virginia Code § 56-3-23 list the
circumstances in which a plaintiff may serve process on a defendant by publication. Neither
permits service by publication in circumstances where the only attempted personal service was by
certified mail. Therefore, this Court accepts the Board’s concession that the magistrate court did
not possess in personam jurisdiction over petitioner.4


       3
          Both parties address the merits of the Board’s action against petitioner, as well as various
irrelevant procedural issues.
       4
         See Syl. Pt. 8, State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991) (“This Court is not
obligated to accept the State’s confession of error in a criminal case. We will do so when, after a
proper analysis, we believe error occurred.”).
                                                  2
        The Board argues that petitioner failed to move to set aside the January 26, 2010 default
judgment within a reasonable time. However, the Board does not dispute petitioner’s statement
that she first learned of the default judgment in January of 2012. Petitioner subsequently filed a
motion to set aside the default judgment on February 10, 2012. Thus, the Court finds that the
motion to set aside the void default judgment was timely made and should have been granted
pursuant to Syllabus Point Five of Leslie Equipment, see 224 W.Va. at 530, 687 S.E.2d at 110.

        In affirming the denial of petitioner’s motion, the circuit court focused on whether she had
a meritorious defense to the Board’s claim that she owed past due fire service fees. In Syllabus
Point Three of Parsons v. Consolidated Gas Supply Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979),
this Court held that the existence of a meritorious defense is a factor to be considered in judging
whether a default judgment should be set aside. However, this Court further explained in Beane
that a Parsons analysis is unnecessary where a default judgment is void due to a lack of personal
jurisdiction. 226 W.Va. at 447, 701 S.E.2d at 850. The entry of such a default judgment constitutes
“a per se abuse of discretion.” 226 W.Va. at 447-48, 701 S.E.2d at 850-51 (Internal quotations and
citations omitted.). Thus, this Court determines that the circuit court abused its discretion in
affirming the denial of petitioner’s motion to set aside the default judgment.

        The Board last argues that if the Court deems it proper to vacate the default judgment, the
Court should vacate the judgment only in part. The Board asserts that petitioner will be unable to
produce any evidence that she paid the required fire fees during the years 2004 through 2007 and,
therefore, the judgment that petitioner is liable for the fees should be preserved and the case should
be remanded only for a hearing on the amount due. However, a void judgment is “a nullity [that]
may be attacked, collaterally or directly, at any time and in any court whenever any claim or right
is asserted under such judgment.” Syl. Pt. 2, Beane (Internal quotations and citations omitted.).
Accordingly, the Court concludes that the entire default judgment fails.

        For the foregoing reasons, we reverse the circuit court’s January 4, 2013 order and remand
this case with directions to vacate the January 26, 2010 default judgment.

                                                          Reversed and Remanded with Directions.

ISSUED: December 4, 2013

CONCURRED IN BY:

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




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