No. 32781 _
The Hardwood Group d/b/a Plywood and Plastics
of Roanoke v. Claire V. Larocco
Albright, Justice, concurring:
While I agree with the result reached in
this case, I write separately because the majority has omitted from its discussion
any reference to the well-established approach this Court has applied to its
review of default judgments. Historically, default judgments have been a disfavored
mechanism for case resolution. This is because of our stated policy of preferring
that cases be resolved on their merits. As a result, this Court has regularly
applied the provisions of Rule 60(b) in a liberal or flexible manner with the
objective of encouraging the resolution of a case on its merits rather than through
the entry of a default judgment.
See Syl. Pt. 2,
Hamilton Watch Co.
v. Atlas Container, Inc., 156 W.Va. 52, 190 S.E.2d 779 (1972) (holding that “[i]nasmuch
as courts favor the adjudication of cases on their merits, Rule 60(b) of the
West Virginia Rules of Civil Procedure should be given a liberal construction”);
accord
Budget Blinds, Inc. v. White, 2006 WL 891187 (D. N.J. 2006) (recognizing
that “[c]ourts in this circuit are instructed that, when 'passing upon default
judgments, Rule 60(b) should be “given a liberal construction [and][a]ny
doubt should be resolved in favor of the petition to set aside the judgment so
that cases may be decided on the merits”'”) (citations omitted);
Nisson
v. Lundy, 975 F.2d 802, 807 (11
th Cir. 1992) (stating that “Rule
60(b) is to be given a liberal and remedial construction”);
see generally
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice
and Procedure vol. 11, 231-32 § 2852 (2
nd ed., West 1995)
(observing that especially with regard to default judgments “courts have
been more flexible in providing relief [under Rule 60(b)] in order to decide
cases on the merits”).
In
Parsons v. Consolidated Gas Supply
Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979), we recognized that our policy
of liberally construing Rule 60(b) motions to vacate default judgments was expressly
in accord with the approach taken by the federal courts to this same issue.
(See
footnote 1) Id. at 471, 256 S.E.2d at 762. Thus, in cases
where material issues of fact exist; meritorious defenses have been asserted;
significant interests are at stake; and the defaulting party's degree of intransigence
is either minimal or not readily apparent, this Court has made it clear that
our policy is to prefer that a decision be reached on the merits of the case
rather than to permit the case to be abruptly terminated on procedural grounds.
See
id.
By omitting any serious discussion regarding
the critical policy considerations that underlie a Rule 60(b) motion to set aside
a default judgment, the majority has, in my opinion, wrongly eviscerated a necessary
element of elasticity from the inquiry into the existence of good cause. And,
by advancing a more rigid approach to this issue, the majority imprudently elevates
concerns for finality over the equally, if not more, compelling policy concern
of preferring that cases be resolved on their merits where possible. See Meadows
v. Cohen, 409 F.2d 750, 752 n.4 (5th Cir. 1969) (recognizing
that “[a] proceeding under the rule [60(b)] 'calls for a delicate adjustment
between the desirability of finality and the prevention of injustice'”)
(quoting In re Casco Chem. Co., 335 F.2d 645, 651 (5th Cir.
1964)).
In failing to recognize that the “good
cause” inquiry that accompanies any analysis of whether there are grounds
to vacate a default judgment is traditionally performed in a liberal manner,
the majority veers sharply from the longstanding approach taken by this Court.
Moreover, by adopting a test for determining “good cause” that seeks
to sidestep the need for flexibility and overlooks the need to promote case resolution
based on merit, the approach taken by the majority is likely to prove a disservice
to the very interests of promoting justice and fairness it arguably seeks to
advance. See MIF Realty L.P. v. Rochester Asssoc., 92 F.3d 752,
755 (8th Cir. 1996) (explaining that a liberal construction is afforded to Rule
60(b) to do substantial justice and “'“to prevent the judgment from
becoming a vehicle of injustice”'”) (citations omitted).
I am authorized to state that Justice Starcher
joins in the concurring opinion.
Footnote: 1 Interestingly, the
majority relies upon federal law as support for its analysis of Rule 55(c)
and yet steers clear of any acknowledgment of this Court's parallel approach
to that of the federal courts with regard to reviewing Rule 60(b) motions to
vacate default judgments in a liberal manner. What the majority does is to
hide behind eponymous commentary which recognizes that, as between defaults
and default judgments, the former is reviewed more liberally than the latter
based on finality principles. This distinction, however, does not “explain
away” the accepted and established liberal review of Rule 60(b) motions
seeking to set aside default judgments.