McGraw, Justice, concurring in part, and dissenting in part: While I agree that National's
intransigence in this case justifies a finding of default as to liability,
I take issue with the majority's action in reversing the resulting award of
damages. Specifically, I disagree with the majority's assertion in syllabus
point five of the Court's opinion that for purposes of West Virginia Rule
of Civil Procedure 55(b)(2), an “appearance” by a party to a litigation
may consist of nothing more than an oral or written communication to the opposing
party demonstrating an interest in the pending litigation. As the majority opinion
readily admits, our past cases dealing with this issue are in conflict. In
Intercity Realty Co. v. Gibson, 154 W. Va. 369, 374-76, 175 S.E.2d
452, 455 (1970), this Court expressly rejected the notion that mere oral communication
between counsel constitutes an appearance under Rule 55(b)(2). More recently,
however, in dictum contained in Farm Family Mutual Ins. Co. v. Thorn Lumber
Co., 202 W. Va. 69, 501 S.E.2d 786 (1998), we indicated that “[t]he
term 'appeared in the action' for purposes of Rule 55(b)(2) is quite different
from an appearance for other purposes (such as establishing personal jurisdiction).”
Id. at 75 n.9, 501 S.E.2d at 792 n.9. I see no valid reason
why we should give divergent meanings to this term of art, particularly as
there are sound policy reasons for resolving this conflict by adhering to the stance this Court
originally took in Intercity Realty. Although I recognize the
importance of giving a defendant an opportunity to defend against an application
for default judgment, the Court should not go out of its way to find an appearance
based upon communications that may indicate nothing more than de minimis
attention to the litigation. As the Seventh Circuit emphasized in Zuelzke,
“it is a disservice to the legal system to distort the meaning of a concrete
term such as 'appearance' in order to provide a mechanism to save a party
from a default judgment.” 925 F.2d at 230. With this admonition in mind,
I would adopt the Zuelzke court's approach to resolving this issue. Therefore, I respectfully
concur with Part III.B of the majority opinion respecting National's default
as to liability, but dissent from Part III.A of the opinion, which reverses
the circuit court's award of damages. National was not entitled to notice
under Rule 55(b)(2) because it never made a proper appearance in the action
prior to the entry of a default judgment.
Even the federal courts, from
where we derive Rule 55(b)(2), are not unanimous as to what constitutes an
appearance in this context. In Anderson v. Taylorcraft, Inc., 197 F.
Supp. 872 (W.D. Pa. 1961), an appearance with respect to Rule 55(b)(2) was
described as “ordinarily an overt act by which a party comes into a court
and submits himself to its jurisdiction.” Id. at 874 (citation
omitted). Following this standard, the Seventh Circuit, in Zuelzke Tool
& Engineering Co., Inc. v. Anderson Die Castings, Inc., 925 F.2d 226
(7th Cir. 1991), declined to find that “informal settlement negotiations”
between parties could amount to making an appearance under Rule 55(b)(2):
[A] party “has appeared
in the action” under Rule 55(b)(2) only where that party has actually
made some presentation or submission to the district court in the pending
action. Such an interpretation is consistent with traditional and accepted
legal parlance in which “appearance” is defined as “a coming
into court as a party to a suit, either in person or by an attorney, whether
as plaintiff or defendant.”
Id. at 230 (quoting Black's Law Dictionary 89 (5th Ed. 1979))
(emphasis in original).
In Town and Country Kids,
Inc. v. Protected Venture Inv. Trust #1, Inc., 178 F.R.D. 453 (E.D. Va.
1998), the district court found that a notarized deposition sent from defendant's
to plaintiff's counsel, suggesting the possibility of settlement, was not
enough to constitute an appearance under Rule 55(b)(2). That court reasoned that
“requiring a party to make at least some submission to the district court
is necessary to apprise the court of . . . whether that party has
an interest in defending the suit.” Id. at 455. Likewise,
in Rogers v. Hartford Life and Accident Insurance Co., 167 F.3d 933
(5th Cir. 1999), the court would not accept the defendant's claim that its
waiver of service of process constituted an appearance under the rule: “We
will not interpret the phrase 'appeared in the action' so broadly as to eviscerate
the appearance requirement of Rule 55(b)(2).” Id. at 937.
These authorities emphasize
the importance of keeping a trial court informed of the status of pending
litigation. “Efficient court management and reliability of judicial process
is enhanced by court records which disclose the critical procedural actions
of the parties_such as the entry of an appearance.” Zuelzke, 925
F.2d at 230. Interpreting Rule 55(b)(2) so broadly as to allow an appearance
to be predicated upon “any communication to an opposing party that demonstrates
either an interest in the pending litigation, or actual notice of the litigation,”
as the majority does in the present case, will inevitably lead to confusion
and disorganization in the lower courts. A simple acknowledgment by a party
of having received notice of pending litigation does not reveal to anyone,
most importantly the circuit court, what that party's intentions are with
respect to defending the action. See Rogers, 167 F.3d at 938
(“Waiver of service of process does not in any way indicate that a defendant
intends to defend.”). This is nowhere more evident than in the instant
case, where National's response to a waiver of subrogation request obviously did not
signal its intent to defend the present action.