2019 WL 1430769

Supreme Court of Appeals of West Virginia.
Samuel R. AMORUSO, Jr. d/b/a Quality Supplier Trucking, Inc., a West Virginia Corporation, Defendant Below, Petitioner
v.
COMMERCE AND INDUSTRY INSURANCE COMPANY, Plaintiff Below, Respondent
No. 17-1106
|
Submitted: January 29, 2019
|
Filed: March 27, 2019
Synopsis
Background: Officer of trucking company moved to set aside a default judgment that workers’ compensation carrier obtained in breach of contract action for failure to pay premiums under a workers’ compensation insurance policy. The Circuit Court, Mineral County, Lynn A. Nelson, J., denied motion. Officer appealed.

Holdings: The Supreme Court of Appeals, Walker, C.J., held that:

[1] trial court acted within its discretion in denying motion as untimely;

[2] officer consented to personal jurisdiction over him; and

[3] default judgment could not be set aside as void, even if officer was wrong party to the action.

Affirmed.

West Headnotes (12)

[1]
Judgment
Discretion of court

A motion to vacate a default judgment is addressed to the sound discretion of the trial court. W. Va. R. Civ. P. 55, 60(b).
Cases that cite this headnote

[2]
Appeal and Error
Relief from default judgment

A trial court’s ruling on a motion to vacate a default judgment will not be disturbed on appeal unless there is a showing of an abuse of discretion. W. Va. R. Civ. P. 55, 60(b).
Cases that cite this headnote

[3]
Appeal and Error
Judgment by default

On review of a ruling on a motion to vacate a default judgment, the Supreme Court of Appeals is mindful of the presumption in favor of adjudication of cases upon the merits. W. Va. R. Civ. P. 55, 60(b).
Cases that cite this headnote

[4]
Judgment
Excuses for Default
Judgment
Meritorious Cause of Action or Defense
Judgment
Prejudice from judgment

In determining whether a default judgment should be vacated pursuant to motion for relief from judgment, the trial court should consider: (1) the degree of prejudice suffered by the plaintiff from the delay in answering; (2) the presence of material issues of fact and meritorious defenses; (3) the significance of the interests at stake; and (4) the degree of intransigence on the part of the defaulting party. W. Va. R. Civ. P. 55, 60(b).
Cases that cite this headnote

[5]
Judgment
Necessity for excuse
Judgment
Necessity for showing meritorious cause of action or defense
Judgment
Prejudice from judgment

In addressing a motion to set aside a default judgment, “good cause” requires not only considering the degree of prejudice suffered by the plaintiff from the delay in answering, the presence of material issues of fact and meritorious defenses, the significance of the interests at stake, the degree of intransigence on the part of the defaulting party, and the reason for the defaulting party’s failure to timely file an answer, but also requires a showing that a ground set out under the rule governing motions for relief from judgment has been satisfied. W. Va. R. Civ. P. 55(c), 60(b).
Cases that cite this headnote

[6]
Judgment
Time for Application

Trial court acted within its discretion in denying, as untimely, a motion to set aside a default judgment on the basis of mistake, fraud, misrepresentation, and excusable neglect in breach of contract action for alleged failure to pay premiums on workers’ compensation insurance policy; the stated grounds for relief were all subject to a one-year time limitation that had already expired, and to the extent that the movant argued that the inequities of the case demanded relief, there was no provision for the extension of the one-year limitations period. W. Va. R. Civ. P. 6(b)(2), 60(b)(1)-(3).
Cases that cite this headnote

[7]
Courts
Jurisdiction of Cause of Action
Courts
Jurisdiction of the Person in General

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 is fatal to its jurisdiction.
Cases that cite this headnote

[8]
Courts
Waiver of Objections

Trucking company’s officer consented to trial court’s personal jurisdiction over him in breach of contract action for alleged failure to pay premiums on workers’ compensation insurance policy, where officer filed an answer with the court without objection to personal jurisdiction.
Cases that cite this headnote

[9]
Courts
Waiver of Objections

Trucking company’s officer waived any challenge to trial court’s personal jurisdiction over him in breach of contract action for alleged failure to pay premiums on workers’ compensation insurance policy, where officer did not raise lack of jurisdiction in his answer to the original complaint, did not respond to the amended complaint, did not move dismiss for lack of jurisdiction or insufficient service of process, and did not contend at any point in his participation in the case that the circuit court lacked personal jurisdiction. W. Va. R. Civ. P. 12(h)(1).
Cases that cite this headnote

[10]
Judgment
Persons entitled to relief

Default judgment against trucking company’s officer could not be set aside as void, even if officer, in his personal capacity, was the wrong party to a breach of contract action for failure to pay premiums on workers’ compensation insurance policy; judgment was not void merely because it may have been erroneous. Fed. R. Civ. P. 60(b)(4).
Cases that cite this headnote

[11]
Judgment
Invalidity of judgment in general

Relief from judgment on the basis that the judgment is void is not available merely because a disposition is erroneous; rather, before a judgment may be deemed “void” within meaning of rule governing relief from judgment, the judgment must be determined that the rendering court was powerless to enter it. Fed. R. Civ. P. 60(b)(4).
Cases that cite this headnote

[12]
Judgment
Errors of law

An erroneous application of the law does not render a judgment void and, therefore, does not provide a basis for relief from void judgments. W. Va. R. Civ. P. 60(b)(4).
Cases that cite this headnote

Syllabus by the Court
*1 1. “ ‘A motion to vacate a default judgment 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 discretion.’ Syl. Pt. 3, Intercity Realty Co. v. Gibson, 154 W. Va. 369, 175 S.E.2d 452 (1970) [overruled on other grounds by Cales v. Wills, 212 W. Va. 232, 569 S.E.2d 479 (2002) ].” Syllabus Point 6, Games-Neely ex rel. W. Va. State Police v. Real Prop., 211 W. Va. 236, 565 S.E.2d 358 (2002).

2. “In determining whether a default judgment should be … vacated upon a Rule 60(b) motion, the trial court should consider: (1) The degree of prejudice suffered by the plaintiff from the delay in answering; (2) the presence of material issues of fact and meritorious defenses; (3) the significance of the interests at stake; and (4) the degree of intransigence on the part of the defaulting party.” Syllabus Point 3, in part, Parsons v. Consol. Gas Supply Corp., 163 W. Va. 464, 256 S.E.2d 758 (1979).

3. “In addressing a motion to set aside a default judgment, ‘good cause’ requires not only considering the factors set out in Syllabus point 3 of Parsons v. Consolidated Gas Supply Corp., 163 W. Va. 464, 256 S.E.2d 758 (1979), but also requires a showing that a ground set out under Rule 60(b) of the West Virginia Rules of Civil Procedure has been satisfied.” Syllabus Point 5, Hardwood Grp. v. Larocco, 219 W. Va. 56, 631 S.E.2d 614 (2006).

4. “ ‘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 is fatal to its jurisdiction.’ Syl. Pt. 3, State ex rel. Smith v. Bosworth, 145 W. Va. 753, 117 S.E.2d 610 (1960).” Syllabus Point 1, Leslie Equip. Co. v. Wood Res. Co., L.L.C., 224 W. Va. 530, 687 S.E.2d 109 (2009).

5. An erroneous application of the law does not render a judgment void and, therefore, does not provide a basis for relief from void judgments under Rule 60(b)(4) of the West Virginia Rules of Civil Procedure.

Appeal from the Circuit Court of Mineral County, The Honorable Lynn A. Nelson, Judge, Case No. 14-C-75
Attorneys and Law Firms
James E. Smith II, Esq., Keyser, West Virginia, Counsel for Petitioner
Richard F. Shearer, Esq., Shook, Hardy & Bacon L.L.P, Kansas City, Missouri, Clinton W. Smith, Esq., Law Office of Clinton W. Smith, Charleston, West Virginia, Counsel for Respondent
Opinion

WALKER, Chief Justice:

Commerce and Industry Insurance (Commerce and Industry) filed a breach of contract claim against Petitioner Samuel L. Amoruso, Jr. d/b/a Quality Supplier Trucking, Inc. (Amoruso) for breach of contract by failing to pay insurance premiums. Although Amoruso answered the original complaint and responded to discovery in the case, he did not respond to Commerce and Industry’s properly served amended complaint. Nearly sixteen months after Commerce and Industry obtained a default judgment against Amoruso, he filed a motion to set aside the default judgment, arguing that he was not a proper party to the action. Because the grounds on which Amoruso sought to have the judgment set aside are subject to a one-year time limitation under Rule 60(b) of the West Virginia Rules of Civil Procedure, the circuit court denied Amoruso’s motion as untimely.

*2 On appeal, Amoruso raises these same grounds to set aside the judgment as those made below, which we agree were untimely under Rule 60(b). And, although not raised below, Amoruso argues that the judgment is void for lack of personal jurisdiction because Commerce and Industry did not sue the proper entity. While void judgments are not subject to the strict one-year time frame set forth in Rule 60(b), the circuit court did not lack personal jurisdiction over Amoruso so as to render the judgment void. So, we find that the circuit court did not abuse its discretion in denying Amoruso’s motion to set aside the default judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2014, Commerce and Industry Insurance filed a complaint in the Circuit Court of Mineral County for breach of contract against “Samuel L. Amoruso, Jr., d/b/a Quality Supplier Trucking, Inc.” for failure to pay premiums under a workers’ compensation insurance policy. The summons and complaint were served upon Amoruso. Amoruso, appearing pro se, filed an answer generally denying the allegations; he did not assert any affirmative defenses. Commerce and Industry then filed discovery requests to which Amoruso did not respond. Commerce and Industry filed a motion to compel, which was set for hearing. Amoruso did not attend the hearing and the circuit court entered an order compelling Amoruso to respond to the discovery requests. Amoruso responded to the discovery requests, again generally denying that he owed the amount due. Amoruso alleges that he had been in discussions with Commerce and Industry during this time and believed the matter would ultimately be settled.

In June 2015, Commerce and Industry filed a motion to amend its complaint. Amoruso received proper notice of the hearing conducted by the circuit court on the motion, but he did not appear to contest. Given leave to file an amended complaint by the circuit court, Commerce and Industry alleged that Amoruso owed premiums under an additional workers’ compensation policy. On August 19, 2015, Amoruso was served with the amended complaint and summons in person. The summons contained the requisite language “[i]f you fail [to serve an answer to the Amended Complaint within 20 days of service], judgment by default will be taken against you for the relief demanded in the complaint[.]”1 Amoruso did not respond to the amended complaint.

In January 2016, Commerce and Industry filed a motion for default judgment. The circuit court granted the motion and entered judgment in favor of Commerce and Industry on January 28, 2016. After attempting to collect the judgment, Commerce and Industry filed a writ of execution in April 2017, which it amended in May 2017. On May 19, 2017, Amoruso, now represented by counsel, filed a motion to set aside the default judgment under Rule 60(b) of the West Virginia Rules of Civil Procedure.

Amoruso’s motion contended that Commerce and Industry’s workers’ compensation policy was in the name of “Q.S.I., Inc.” of which Commerce and Industry was aware and they instead chose to pursue the unpaid amounts from Amoruso in his personal capacity d/b/a Quality Supplier Trucking, Inc. The motion included a print-out from the West Virginia Secretary of State’s website identifying Amoruso as the Treasurer and Vice-President of Q.S.I., Inc., as well as the workers’ compensation policy issued to Q.S.I., Inc., and past-due notices sent to Q.S.I., Inc. Because Commerce and Industry allegedly sued the wrong entity by suing him in his personal capacity rather than suing Q.S.I., Inc., Amoruso alleged in his motion that Commerce and Industry had either made a mistake, or negligently or intentionally perpetrated a fraud on the court by misrepresenting salient facts. Amoruso also sought relief from the judgment under excusable neglect, arguing that he had appeared pro se at the time the judgment was entered and had been communicating with Commerce and Industry regarding settlement of the dispute.2

*3 During the hearing on Amoruso’s motion, his counsel argued the same points raised in his written motion and additionally asserted that Commerce and Industry’s counsel was “going around the State trying to ram judgments wherever he wants.” The circuit court responded that Amoruso’s counsel was out of line and that it was out of line for Amoruso to “ha[ve] spen[t] his whole entire career creating these damn companies so he can hide behind money that he owes people.”

In response, Commerce and Industry argued that under Rule 60(b), those seeking to set aside a default judgment on the grounds of mistake, fraud, or excusable neglect must do so within one year of the judgment, which had passed nearly four months prior. Alternatively, Commerce and Industry argued that the circuit court should not grant the motion to set aside the default judgment because Amoruso had never explained why he failed to answer the amended complaint and he was apparently under the impression that the matter would go away if he ignored it. The circuit court denied Amoruso’s motion to set aside the default judgment on the grounds that it was untimely. It is from that order that Amoruso now appeals, arguing, in addition to the grounds raised to the circuit court below, that the circuit court lacked personal jurisdiction over him and was prejudiced against him as evidenced by the comments made by the court relating to his business practices.

II. STANDARD OF REVIEW
[1] [2] [3]With respect to motions made under Rule 60(b) of the Rules of Civil Procedure to set aside a default judgment rendered under Rule 55 of the Rules of Civil Procedure, we have held that “[a] motion to vacate a default judgment 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 discretion.”3 However, we are mindful that there is a presumption in favor of adjudication of cases upon their merits.4

III. DISCUSSION
We begin by discussing the Rules of Civil Procedure involved in the proceedings below. First, Rule 55(c) provides that “[f]or good cause shown the court may set aside an entry of default and, if a judgment of default has been entered, may likewise set it aside in accordance with Rule 60(b).” And, Rule 60(b) outlines the grounds for relief and timing of a motion to set aside a judgment, providing in relevant part:
Mistakes; inadvertence; excusable neglect; unavoidable cause; newly discovered evidence; fraud, etc. – On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise, excusable neglect, or unavoidable cause;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
*4 (6) any other reason justifying relief from the operation of the judgment.
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. …

[4] [5]In Parsons v. Consolidated Gas Supply Corp.,5 we identified four factors a trial court should consider under Rule 60(b) specific to the context of a motion to set aside a default judgment:
In determining whether a default judgment should be … vacated upon a Rule 60(b) motion, the trial court should consider: (1) The degree of prejudice suffered by the plaintiff from the delay in answering; (2) the presence of material issues of fact and meritorious defenses; (3) the significance of the interests at stake; and (4) the degree of intransigence on the part of the defaulting party.[6]
Subsequently, we clarified the interplay between “good cause” under Rule 55(c) and the requisite showing of a grounds for relief from a default judgment7 under Rule 60(b) as follows:
[i]n addressing a motion to set aside a default judgment, “good cause” requires not only considering the factors set out in Syllabus point 3 of Parsons v. Consolidated Gas Supply Corp., 163 W. Va. 464, 256 S.E.2d 758 (1979), but also requires a showing that a ground set out under Rule 60(b) of the West Virginia Rules of Civil Procedure has been satisfied.8

[6]Turning to the facts before us, before we reach consideration of the Parsons factors, Amoruso must show that he is entitled to relief under one of the grounds enumerated in Rule 60(b). Below, in his motion to the circuit court, Amoruso specifically raised “mistake,” “fraud,” “misrepresentation,” and “excusable neglect,” and again used similar terms in his prayer for relief. His remaining allegations all centered upon the negligent or intentional actions of Commerce and Industry in pursuing the action against him in his personal capacity.

Undoubtedly, his stated grounds for relief below all fall within the parameters of Rule 60(b)(1) and 60(b)(3), both of which are subject to a one-year time limitation that had already expired. To the extent Amoruso argues that the inequities of this case demand relief, we note that Rule 6(b)(2) of the West Virginia Rules of Civil Procedure precludes enlargement of time for motions made under Rule 60(b) except to the extent and under the conditions stated in that rule. Under Rule 60(b), there is no provision for the extension of the one-year limitation on motions made under Rule 60(b)(1)-(3). For that reason, we find that the circuit court did not abuse its discretion in denying Amoruso’s motion to set aside the default judgment as untimely for the grounds raised.

Although not argued below, Amoruso now attempts to repackage the allegations made to the circuit court as those seeking to set aside the default judgment as void for lack of personal jurisdiction under Rule 60(b)(4),9 which is not subject to the one-year restriction.10 The crux of Amoruso’s argument is that the circuit court did not have personal jurisdiction over him because he was not the proper party in the action. Rather, he argues that his company, Q.S.I., Inc., was the proper party. While we disagree that Amoruso’s allegations below can be characterized as such, the argument is nonetheless meritless because it fundamentally misapprehends the concept of personal jurisdiction.

*5 [7]We have held that “ ‘[t]o 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 is fatal to its jurisdiction.’ ”11 Rendering a default judgment in the absence of personal jurisdiction could give rise to setting aside that default judgment under Rule 60(b)(4). Amoruso argues that the circuit court lacked jurisdiction over him because he was not the proper entity to be sued, but that allegation is insufficient to preclude personal jurisdiction over him for two reasons.

[8] [9]First, Amoruso was properly served and appeared in the case. Having filed an answer with the court without objecting to jurisdiction, he consented to the circuit court’s jurisdiction.12 Under Rule 12(h)(1) of the West Virginia Rules of Civil Procedure,
[a] defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.
Amoruso did not raise lack of jurisdiction in his answer to the original complaint, did not respond to the amended complaint,13 did not make a motion under Rule 12 for dismissal for lack of jurisdiction or insufficient service of process, and at no point in his participation in the case contended that the circuit court lacked personal jurisdiction.14 For those reasons, we find that Amoruso waived any challenge to the circuit court’s personal jurisdiction.

[10] [11] [12]Second, Amoruso’s “personal jurisdiction” argument does not include any typical jurisdictional objections to the effect that he does not live in the state, has no minimum contacts with the state, or is otherwise not amenable to suit in West Virginia. Instead, Amoruso argues that he, in his personal capacity “d/b/a Quality Supplier Trucking, Inc.,” is simply the wrong party to the action. His argument, then, is that that the circuit court was wrong, not that it lacked jurisdiction over Amoruso’s person.15 The fact that Amoruso perceives the order as wrong does not render it void for the purposes of Rule 60(b)(4). As the federal courts have aptly found,16 “ ‘[r]elief under Rule 60(b)(4) is not available merely because a disposition is erroneous.’ … ‘Rather, before a judgment may be deemed void within the meaning of the rule, it must be determined that the rendering court was powerless to enter it.’ ”17 This distinction and the limitations of Rule 60(b)(4) are grounded in maintaining the sanctity of final judgments and preventing parties from invoking Rule 60(b)(4) as a substitute for a timely appeal.18 Accordingly, we hold that an erroneous application of the law does not render a judgment void and, therefore, does not provide a basis for relief from void judgments under Rule 60(b)(4) of the West Virginia Rules of Civil Procedure.

*6 As noted above, the circuit court was not powerless to enter a judgment against Amoruso for lack of personal jurisdiction, and Amoruso could have raised his contentions that he was not the appropriate party by asserting it as a defense or by moving to dismiss the case. Amoruso did neither, and the allegation that the judgment is erroneous because he is the improper party is insufficient to void the judgment under Rule 60(b)(4). For those reasons, even were we to find that the matter had been sufficiently raised below, we do not find that the judgment is void for lack of personal jurisdiction.19

Accordingly, we do not find that Amoruso has made a timely showing under Rule 60(b)(1) or 60(b)(3), nor do we find that the judgment was void under Rule 60(b)(4).20 Because Amoruso has not made a showing that a ground set out under Rule 60(b) has been satisfied, we need not reach the consideration of the Parsons factors in order to determine that the circuit court did not abuse its discretion in finding that there was no good cause to set aside the default judgment.

IV. CONCLUSION
For the foregoing reasons, we do not find that the circuit court abused its discretion in denying Amoruso’s Motion to Set Aside the Default Judgment, and so affirm the November 17, 2017 order of the Circuit Court of Mineral County.

Affirmed.

JUSTICE WORKMAN and JUSTICE HUTCHISON dissent and reserve the right to file dissenting opinions.
All Citations
— S.E.2d —-, 2019 WL 1430769

Footnotes

1
See W. Va. R. Civ. P. 4(a).

2
Specifically, Amoruso contended that he had been in communications with both Commerce and Industry and its counsel that the dollar amount had been calculated incorrectly and that he himself was not the entity to be charged. He was of the opinion that the matter would ultimately be settled upon review of the records and a corrected calculation of what, if any, amount was due.

3
Syl. Pt. 6, Games-Neely ex rel. W. Va. State Police v. Real Prop., 211 W. Va. 236, 565 S.E.2d 358 (2002) (quoting Syl. Pt. 3, Intercity Realty Co. v. Gibson, 154 W. Va. 369, 175 S.E.2d 452 (1970) (overruled on other grounds by Cales v. Wills, 212 W. Va. 232, 569 S.E.2d 479 (2002)).

4
Farm Family Mut. Ins. Co. v. Thorn Lumber Co., 202 W. Va. 69, 72, 501 S.E.2d 786 (1998).

5
163 W. Va. 464, 256 S.E.2d 758 (1979).

6
Id. at Syl. Pt. 3, in part.

7
See Hardwood Group v. Larocco, 219 W. Va. 56, 62–63, 631 S.E.2d 614, 620–21 (2006) (distinguishing relevant considerations for relief from default as opposed to default judgment).

8
Id. at Syl. Pt. 5.

9
Although this Court has not enumerated the particular circumstances that may render a judgment void, federal courts interpreting Federal Rule of Civil Procedure 60(b)(4) generally hold that a judgment is void “if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” Wright & Miller, 11 Fed. Prac. & Proc. § 2862 (3d ed.). Accord, United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010) (“Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard.”); United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661-62 (1st Cir. 1990) (“A judgment is void, and therefore subject to relief under Rule 60(b)(4), only if the court that rendered judgment lacked jurisdiction or in circumstances in which the court’s action amount to a plain usurpation of power constituting a violation of due process.”) (emphasis in original).

10
We note that Mr. Amoruso in making his argument that the judgment is void under Rule 60(b)(4) has not provided a reason for his failure to answer the amended complaint despite his concession that it was duly served and contained the obligatory language that his failure to respond would result in a default judgment against him.

11
Syl. Pt. 1, Leslie Equip. Co. v. Wood Res. Co., L.L.C., 224 W. Va. 530, 687 S.E.2d 109 (2009) (quoting Syl. Pt. 3, State ex rel. Smith v. Bosworth, 145 W. Va. 753, 117 S.E.2d 610 (1960)).

12
See Syl. Pt. 4, Blankenship v. Estep, 201 W. Va. 261, 496 S.E.2d 211 (1997) (“ ‘Consent of parties cannot confer upon a court jurisdiction which the law does not confer, or confers upon some other court, although the parties may by consent submit themselves to the jurisdiction of the court. In other words, consent cannot confer jurisdiction of the subject-matter, but it may confer jurisdiction of the person.’ Syllabus Point 2, Yates et al. v. Taylor County Court, 47 W. Va. 376, 35 S.E.24 (1900).”).

13
See supra n.10.

14
See State ex rel. Ford Motor Co. v. McGraw, 237 W. Va. 573, 788 S.E.2d 319 (2016) (“When the objection to personal jurisdiction is timely made, a defendant does not thereafter waive the defense by further participation.”) (emphasis added).

15
See Syl. Pt. 2, in part, Yates, 47 W. Va. at 376, 35 S.E. at 24 (“In other words, consent cannot confer jurisdiction of the subject-matter, but it may confer jurisdiction of the person.”).

16
Rule 60(b) of the West Virginia Rules of Civil Procedure contains the same pertinent language as its federal counterpart, including identical enumerated grounds for relief. We have explained that “[b]ecause the West Virginia Rules of Civil Procedure are patterned after the Federal Rules of Civil procedure, we often refer to interpretations of the Federal Rules when discussing our own rules. See Cattrell Companies, Inc. v. Carlton, Inc., 217 W. Va. 1, 8 n.21, 614 S.E.2d 1, 8 n.21 (2005) (“ ‘Because the West Virginia Rules of Civil Procedure are practically identical to the Federal Rules, we give substantial weight to federal cases … in determining the meaning and scope of our rules.’ ”) (quoting Painter v. Peavy, 192 W. Va. 189, 192 n.6, 451 S.E.2d 755,758 n.6 (1994)).

17
Karsner v. Lothian, 532 F.3d 876, 886 (D.C. Cir. 2008) (citations omitted). Accord, Baumlin & Ernst, Ltd. v. Gemini, Ltd., 637 F.2d 238, 241 (4th Cir. 1980) (“There is, however, a substantial difference between a judgment which is erroneous and one which is altogether void[.]”); V.T.A., Inc. v. Airco., Inc., 597 F.2d 220, 224 (10th Cir. 1979) (“A judgment is not void merely because it is or may be erroneous[.]”); Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir. 1972) (“A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect. In the interest of finality, the concept of void judgments is narrowly construed. … Only in the rare instance of a clear usurpation of power will a judgment be rendered void.”).

18
See, e.g., Wendt v. Leonard, 431 F.3d 410, 412–13 (4th Cir. 2005) (cautioning that use of Rule 60(b)(4) intended only for truly void judgments and not as substitute for timely appeal of allegedly erroneous decisions).

19
Question was raised at oral argument as to whether it would be appropriate to set aside the default judgment against Mr. Amoruso as void for lack of notice of Commerce and Industry’s Motion for Default Judgment using a plain error analysis. Consistent with Rule 55(b)(2), a party who has appeared in the action, as Mr. Amoruso has, is entitled to at least three days of notice before the hearing on an application for default judgment, and it does not appear affirmatively from the record on appeal that Amoruso did, in fact, receive notice.
However, Amoruso did not raise lack of notice to the circuit court, and we have deemed waived challenges under Rule 55(b)(2) that were raised for the first time on appeal. See Hartwell v. Marquez, 201 W. Va. 433, 498 S.E.2d 1 (1997); Bell v. West, 168 W. Va. 391, 284 S.E.2d 885 (1981). Not only did Amoruso fail to raise lack of notice to the circuit court, he did not raise it to this Court, even after prompting during oral argument.
Moreover, we have held that “[t]he failure to provide a party against whom judgment of default is sought with notice of the application for judgment as required by Rule 55(b)(2) of the W. Va. Rules of Civil Procedure renders the subsequent default judgment voidable, but such judgment is not void.” Syl. Pt. 4, Hartwell, 201 W. Va. 433, 498 S.E.2d 1 (emphasis in original). Given that Amoruso has never argued that he did not receive notice under Rule 55(b)(2), the predicate facts of a lack of notice have not been conclusively established before this Court, and our precedent does not automatically render the judgment void even if no notice was had, we find it inappropriate to sua sponte set aside the default judgment on those grounds using a plain error analysis.

20
Because we agree with the circuit court that Amoruso’s Motion to Set Aside the Default Judgment was untimely as a matter of law, we need not address Amoruso’s contention that the circuit court was prejudiced toward him as evidenced by its comments relating to Amoruso’s business practices.

2019 WL 1486603

NOTICE: FINAL PUBLICATION DECISION PENDING
Court of Appeals of Iowa.
Mike Marion NIDAY, Petitioner-Appellant,
v.
ROEHL TRANSPORT, INC., Respondent-Appellee.
No. 18-0712
|
Filed April 3, 2019
Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
An injured worker appeals the district court order finding the Iowa Workers’ Compensation Commission had no jurisdiction to award benefits. REVERSED AND REMANDED.
Attorneys and Law Firms
Joseph S. Powell of Thomas J. Reilly Law Firm, P.C., Des Moines, for appellant.
Lee P. Hook and Tyler S. Smith of Peddicord Wharton, LLP, West Des Moines, for appellee.
Heard by Potterfield, P.J., and Tabor and McDonald, JJ, but Decided by Potterfield, P.J., and Tabor and Mullins, JJ.
Opinion

TABOR, Judge.

*1 We must decide if a truck driver injured outside of Iowa is entitled to workers’ compensation benefits under Iowa Code section 85.71(1)(b) (2014). The key question is whether the “contract of hire” between employer Roehl Transport, Inc. (Roehl) and employee Mike Niday was “made in this state.” Because the parties assented to all terms of the contract while Niday was in Iowa, his claim met the requirement of territorial jurisdiction under the statute. Accordingly, we reverse the district court’s judicial review decision and remand for further proceedings.

I. Facts and Prior Proceedings
In his mid-50s and looking for a career change, Niday enrolled in classes at Indian Hills Community College to earn his commercial driver’s license (CDL). He worked as a supply-chain manager for Liguria Foods in Humboldt and attended weekend classes in the spring of 2013. On campus, Niday noticed posters advertising employment opportunities with Roehl.

Roehl is a nationwide trucking company with operating authority in forty-eight states—including Iowa. The company is headquartered in Marshfield, Wisconsin and has nine terminals in seven states—Wisconsin, Georgia, Indiana, Texas, California, Arizona, and Michigan. Roehl also has drop yards1 across the country, though it has none in Iowa.

The posters sparked Niday’s interest, so he asked one of his instructors if Roehl was a good employer. Because the instructor had positive views of the company, Niday decided to apply for a truck-driver position through Roehl’s website after he earned his CDL in May 2013. Roehl receives applications from all over the country and reviews them at its corporate headquarters in Wisconsin.

Shortly after applying, Niday received a written notice from Roehl recruiter Alice Farvour-Smith congratulating him for passing Roehl’s initial screening process. The notice advised Niday to call Farvour-Smith within two days if he was interested in progressing to the next steps of the hiring process. Before Niday had a chance to contact Farvour-Smith, she called to discuss employment with Roehl. Niday was on the job at Liguria Foods in Humboldt when he received Farvour-Smith’s phone call. Niday testified:
[They] said they had received my online application and would like to discuss me com[ing] to work for them.
….
I don’t remember verbatim, but I do remember that we discussed the divisions they had, flatbed, dry van, reefer, and I chose the flatbed division. They have different subdivisions, Midwest regional, national, and of course there’s different pay packages. We discussed that. I told them I’d like to accept the Midwest regional, have a little more home time.

On May 10, Farvour-Smith followed up with a letter mailed to Niday’s Dakota City, Iowa home. The letter began: “Congratulations! Based on the information we’ve received so far, I’m pleased to inform you that you qualify for a driving position with TeamRoehl.” The letter advised Niday the employment offer was “conditional” based on (1) the continued accuracy of the information he provided in his application, (2) successful completion of a “pre-work screening” to ensure Niday could meet the physical demands of the job, (3) passage of a pre-employment drug screen, and (4) successful completion of “all the requirements” of Roehl’s “Safety and Job Skills Program.” The letter then described the two phases of Roehl’s training program—phase one consisted of classroom work, followed by a preliminary test; phase two involved over-the-road experience with another driver, followed by a final driving test. Additionally, the letter confirmed the specific position and associated pay Niday and Farvour-Smith discussed in their earlier phone conversation.

*2 The letter instructed Niday to await a call from a Roehl representative in the next twenty-four hours to arrange a Department of Transportation medical examination, after which Roehl would schedule Niday’s orientation. The letter promised Roehl would provide transportation to the designated phase-one training facility, as well as lodging and meals on phase-one training days. The letter concluded: “Again, congratulations on qualifying for this conditional offer of employment. You’ve completed the first steps toward a rewarding career at Roehl ….”

Niday provided Liguria Foods two weeks’ notice of his intent to leave his job as supply-chain manager. Roehl arranged for Niday to pick up a rental car in Des Moines on June 1 and directed him to report to Marshfield, Wisconsin for orientation beginning June 3. In Marshfield, Niday completed an “application addendum” supplementing his initial application from May 8 and underwent a drug test. The following day, Niday reported to Roehl’s Gary, Indiana terminal for classroom training.

On June 10, Niday completed the phase-one classroom training and passed the preliminary driving test. Roehl identifies that day as Niday’s hiring date, despite the fact he had yet to complete the second phase of training and Farvour-Smith’s May 10 letter conditioned his employment offer on completion of “all requirements of [the] Safety and Job Skills Program.”

For the second phase, Roehl paired Niday with a trainer who observed him drive the trainer’s truck “all over the United States.” After this on-the-road training, Niday returned to Indiana for the final driving test. Niday testified an instructor informed Niday he passed the test and assigned him a fleet manager.2 Niday’s fleet manager, Gina Sanders, directed him to pick up a truck from Roehl’s maintenance shop in Gary. Niday retrieved the truck and returned home to Iowa, set to begin driving solo routes for Roehl.

While working for Roehl, Niday received his load assignments through the computer in his truck. When he accepted an assignment, Roehl sent Niday directions to the pick-up site. Niday would drive to the vendor, load the goods into his truck, and inform Roehl once the goods were secured so Roehl could send directions to the destination. In his deposition, Niday testified the pick-up locations varied based on his location at a given time:
*3 About every time I left my home I would have a run out of Iowa, because [Roehl] always tried minimizing your deadhead miles when you’re not carrying freight. So Monday mornings that I would leave, it was generally a run located out of Iowa.
And then from there it just depended on where I dropped, and they would give me a close pickup to run from there. But most of my runs when I left home [were] out of the Iowa area.
Of the seventy-three assignments Niday completed for Roehl, twenty-five were either picked up from or delivered to Iowa locations.

In November 2013, Niday picked up a load of large aluminum coils from Logan Aluminum in Kentucky. After much heavy lifting, Niday became winded. At first, he blamed the humidity for his difficulty breathing. But then he developed chest pain. A warehouse employee called Logan’s on-site paramedics, and an ambulance transported Niday to a hospital. Niday had suffered a heart attack.

On June 30, 2014, Niday filed a petition with the Iowa Workers’ Compensation Commission seeking benefits. Roehl denied Niday’s claim, arguing the commission lacked jurisdiction because the injury occurred outside of Iowa and none of the grounds in Iowa Code section 85.71 applied. A deputy commissioner heard the matter and filed an arbitration decision finding the commission lacked jurisdiction over Niday’s claim because the “contract of hire” was not made in Iowa and Roehl did not have a “place of business” in Iowa. The deputy characterized the May 2013 conversation and letter while Niday was in Iowa as “an agreement to agree to enter into an employment contract upon successful completion of the conditions precedent.” The deputy held those conditions “were likely met” in Indiana.

Niday unsuccessfully appealed to the commissioner, who adopted the deputy’s decision. Niday then sought judicial review in Iowa District Court for Polk County. After a February 2018 hearing, the district court agreed with the commission, concluding the contract of hire was made outside of Iowa and Roehl had no place of business in Iowa, so the agency lacked jurisdiction to hear Niday’s claim under Iowa Code section 85.71(1)(a) or (b). Niday appeals.

II. Scope and Standards of Review
Section 17A.19(10) (2017) of the Iowa Administrative Procedure Act governs our review of agency decision-making. Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 519 (Iowa 2012). On judicial review, the district court acts in an appellate capacity. Id. When reviewing the district court’s decision, “we apply the standards of [c]hapter 17A to determine whether the conclusions we reach are the same as those of the district court. If they are the same, we affirm; otherwise, we reverse.” Id. (quoting Mycogen Seeds v. Sands, 686 N.W.2d 457, 463 (Iowa 2004)).

When factual findings are not challenged on appeal, but instead the claimed error is in the agency’s interpretation of law, we decide if that interpretation was erroneous.3 Meyer, 710 N.W.2d at 219. If we conclude the agency’s interpretation was erroneous, we substitute our interpretation of the law. Id. Finally, if
the claim of error lies with the ultimate conclusion reached, then the challenge is to the agency’s application of the law to the facts, and the question on review is whether the agency abused its discretion by, for example, employing wholly irrational reasoning or ignoring important and relevant evidence. See Iowa Code § 17A.19(10)(i), (j).
*4 Id.

Here, the parties agree the claimed error stems from the agency’s interpretation and application of contract law principles; the facts are undisputed.4 Neither party asserts the legislature vested authority in the commissioner to interpret the statutory phrase “contract of hire” nor do we find any indication the legislature intended to delegate such authority to the commissioner. See Neal, 814 N.W.2d at 519; see also Iowa Code § 85.71; Iowa Ins. Inst. v. Core Grp. of Iowa Ass’n for Justice, 867 N.W.2d 58, 65 (Iowa 2015) (“In recent years, we have repeatedly declined to give deference to the commissioner’s interpretations of various provisions in chapter 85.”). Accordingly, we do not defer to the agency’s interpretation. See Neal, 814 N.W.2d at 519. “We will reverse if we find the agency’s decision was ‘[b]ased upon an erroneous interpretation of a provision of law.’ ” Andover Volunteer Fire Dep’t v. Grinnell Mut. Reinsurance Co., 787 N.W.2d 75, 80 (Iowa 2010) (quoting Iowa Code § 17A.19(11)(b)).

*5 When interpreting provisions of chapter 85, we remain cognizant of its purpose: to benefit injured workers. Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 197 (Iowa 2010).

III. Analysis
Iowa Code section 85.71 outlines when an employee is entitled to benefits if his or her injury occurs outside of Iowa.5 The statute lists five ways an employee may qualify for benefits:
(a) The employer has a place of business in this state and the employee regularly works at or from that place of business.
(b) The employee is working under a contract of hire made in this state and the employee regularly works in this state.
(c) The employee is working under a contract of hire made in this state and sustains an injury for which no remedy is available under the workers’ compensation laws of another state.
(d) The employee is working under a contract of hire made in this state for employment outside the United States.
(e) The employer has a place of business in Iowa, and the employee is working under a contract of hire which provides that the employee’s workers’ compensation claims be governed by Iowa law.
Iowa Code § 85.71(1).

Niday relies on subsection (b), which requires proof of two elements: (1) at the time of the injury, he was working under a “contract of hire” made in Iowa; and (2) he regularly worked in Iowa.6 Neither party disputes Niday regularly worked in Iowa. The fighting issue is whether the “contract of hire” was “made in this state.”

*6 We determine the place of contracting based on the parties’ intention to form a binding contract. Terry, 631 N.W.2d at 266–67 (quoting Burch Mfg. Co. v. McKee, 2 N.W.2d 98, 101 (Iowa 1942)).
As a rule [the place of contracting] is considered to be the place where the offer is accepted, or where the last act necessary to a meeting of the minds, or to complete the making of the contract, is performed. … [T]he place of contract is the place where the acceptance is made, as, if a resident of one state places a letter in the mail making an offer to one who resides in another state, the contract would be completed where the acceptance is mailed.
Id. (quoting McKee, 2 N.W.2d at 101).

To be bound by a contract, the parties “must manifest a mutual assent to the terms of the contract, and this assent is usually given through the offer and acceptance.” Kristerin Dev. Co. v. Granson, Inc., 394 N.W.2d 325, 331 (Iowa 1986). Here, Niday and Roehl agreed to the terms of Niday’s employment during Farvour-Smith’s May phone call to Niday, answered by Niday while in Iowa. Farvour-Smith confirmed the terms the parties discussed on the phone in a letter sent to Niday’s Iowa residence. So the crux of the dispute is whether the requirements listed in the May 10 letter constituted conditions precedent7 to performance of the contract or conditions precedent to formation of the contract.8 Roehl contends they were conditions precedent to formation, so the contract was not made until Niday fulfilled the training requirements in Gary, Indiana. Roehl argues the conditional nature of its offer meant the exchange in Iowa was merely an “agreement to enter into an agreement,” citing Khabbaz v. Swartz for the proposition “[n]onperformance of a condition precedent vitiates a contract or a proposed contract.” 319 N.W.2d 279, 284 (Iowa 1982). Roehl asserts its communications with Niday “could certainly have been considered a proposed contract with conditions precedent.”

*7 Contrary to Roehl’s assertion, the agreement reached in the May telephone call and confirmed by letter was more than a “proposed contract.” Iowa case law uses the term “proposed contract” when “no mutuality of assent [exists] between the parties.” See Bruggemeyer v. Bruggemeyer, 258 N.W.2d 364, 365–66 (Iowa 1977) (finding no mutual assent to proposed contract for purchase of real estate where defendants’ counsel notified plaintiffs’ counsel that client would not sign contract until disputed pasture rent had been paid and rent was never paid). By contrast, all the terms of Niday’s employment were settled in the phone call and reiterated in the May 10 written confirmation. Roehl does not contend that any terms of Niday’s employment were left up in the air. Instead, the company argues,
Niday’s receipt of the terms of the May 10, 2013, letter did not create a legally binding employment relationship until the conditions listed therein were satisfied. These were conditions which, until completed, did not create a binding obligation on the part of Roehl Transport to employ Niday as a driver.

Roehl’s argument blurs the line between the formation of a contract and the fulfillment of conditions within an existing contract. See Restatement (Second) of Contracts § 224 cmt. c (Am. Law Inst. 1981) (“In order for an event to be a condition, it must qualify a duty under an existing contract.”).9 Our supreme court has defined conditions precedent as “those facts and events, occurring subsequently to the making of a valid contract that must exist or occur before there is a right to immediate performance, before there is a breach of contract duty, before the usual judicial remedies are available.” Nat’l Farmers Org., Inc. v. Lias, 271 N.W.2d 751, 754 (Iowa 1978) (emphasis added); accord Yost v. City of Council Bluffs, 471 N.W.2d 836, 838 (Iowa 1991) (“The City initially attempts to dismiss the allegations raised by Yost in this appeal by contending that no valid and enforceable contract ever existed between the parties. In support of its contention, the City argues that because Yost failed to complete all of the conditions precedent to form the contract, the proposed contract was a nullity. We … find this argument to be meritless and conclude that a valid and enforceable contract was in full force at the time of the fire.”); see also State ex rel. Career Aviation Sales, Inc. v. Cohen, 952 S.W.2d 324, 326–27 (Mo. Ct. App. 1997) (“A condition precedent presupposes the existence of a contract and not the converse …. A condition precedent is a condition which must be fulfilled before the duty to perform an existing contract arises. Thus, a condition precedent denotes an event which qualifies a duty under an already enforceable contract. A contract condition which qualifies a duty of performance by a party does not make the existence or validity of the contract hinge on the condition.” (internal citations omitted)).

A contract is made where the last act necessary to form a binding contract occurs. Terry, 631 N.W.2d at 266–67. We are persuaded by out-of-state authority that the “last act necessary” means acceptance of an offer rather than fulfillment of conditions.10 For example, the New Mexico Court of Appeals thoroughly examined the issue before us—“whether [a drug and safety testing requirement contained in employment offer] was a prerequisite to the formation of the underlying contract, or whether the condition was a prerequisite to a future obligation to perform under the contract.” Potter v. Patterson UTI Drilling Co., 234 P.3d 104, 109 (N.M. Ct. App. 2010). The New Mexico court concluded the condition “did not affect the formation of the underlying contract”—instead, the testing was a prerequisite to continued performance under the contract—i.e., beginning work. Id. at 110.

*8 Likewise, in General Electric Co. v. Folsom, the Oklahoma Supreme Court rejected an employer’s argument the contract was formed in a different state because the offer of employment was contingent on the claimant passing a driving test and a number of physical exams. 332 P.2d 950, 951–52 (Okla. 1958). The Oklahoma court focused on the undisputed evidence—mailed correspondence from the employer extending an offer of employment and claimant accepting, despite the contingencies contained in the offer. See id. The court concluded,
[W]e think there can be no question that, as a matter of fact and law, it was the intention of both Folsom and his employer that his contract of employment come into being in Oklahoma, and that is the state where it was entered into. … When he thereafter met those requirements, even though he did not take, and pass, the company’s physical examination until after his arrival in Indiana, the location of his first job assignment, the effective date of his employment related back to, and was coincident with, his acceptance in Oklahoma of said company’s offer.
Id.; see also Alexander v. Transp. Distribution Co., 954 P.2d 1247, 1250–51 (Okla. Ct. App. 1997) (“[I]t is not the ‘final assent’ of the employer that establishes the ‘place where the contract is made …’ but the ‘final assent’ of an Oklahoma resident to an offer of employment.” (citation omitted)).

And in Bowen v. Workers’ Compensation Appeals Board, 86 Cal. Rptr. 2d 95, 103–04 (Ct. App. 1999), the California Court of Appeals concluded a contract of hire was formed when the Florida Marlins farm team drafted a baseball player, communicating the terms of the employment over the phone. Id. The team mailed the player a contract so he could sign it, then forwarded it to the commissioner; the contract noted it would not become valid until the commissioner signed it. Id. at 97. The California court concluded subsequent formalities did not “abrogate the contract of hire.” Id. at 100. It continued: “[s]uch things as filling out formal papers regarding the specific terms of employment or obtaining a security clearance from the federal government” did not “prevent the contract from initially coming into existence.” Id.

Similarly, the Kansas Court of Appeals concluded the “last act necessary” to form a contract of hire was the claimant’s acceptance of a company’s offer over the phone, despite the requirement the claimant “submit to a pre-employment drug screening and background check” in a different state, as noted in a letter sent by the employer. Shahane v. Station Casino, 3 P.3d 551, 554–55 (Kan. Ct. App. 2000). More jurisdictions take the same stance. See, e.g., Brown v. Travelers Ins. Co., 232 S.E.2d 609, 609 (Ga. Ct. App. 1977); Mattel v. Pittman Constr. Co., 180 So. 2d 696, 698 (La. 1965) (finding contract of hire made in Louisiana where union officer told claimant where to report for work and claimant understood terms of work regarding time and wages, despite fact employer could have rejected claimant upon arrival at out-of-state job site); O’Briant v. Daniel Constr. Co., 305 S.E.2d 241, 243 (S.C. 1983) (“The existence of a contract, not the commencement of work, establishes the employer-employee relationship which is the jurisdictional foundation upon which an award is made. … The final act which rendered a binding contract in the present case was O’Briant’s verbal acceptance over the telephone.”); see also Matthews v. St. Paul Prop. & Liab. Ins., 845 S.W.2d 737, 739 (Tenn. 1992) (“[Employer] offered [claimant] a job during the telephone conversation and … he accepted that offer. The fact that a written contract was later executed in Missouri memorializing the details of the agreement between the trucking company and its new driver does not affect this finding.”).

*9 Roehl overlooks the distinction between formation of a contract and enforceability of a contract. See H.L. Munn Lumber Co. v. City of Ames, 176 N.W.2d 813, 816 (Iowa 1970) (“The insertion of a condition precedent in a contract does not render the same void but only delays the enforceability of the contract until the condition precedent has taken place.” (quoting Locke v. Bort, 103 N.W.2d 555, 558 (Wis. 1960))). Roehl does not argue it was not bound by its promise to employ Niday provided he fulfilled the enumerated conditions. Nor does it dispute Niday’s assertion Farvour-Smith offered him a job during their May 10 phone conversation or that Niday accepted the offer during the same conversation. And Roehl did not present any evidence demonstrating offer or acceptance occurred at a different time or place.

Applying the law to these facts, we conclude Niday and Farvour-Smith struck a bargain in their telephone call. Employment contracts are often oral and informal. See Parson v. Proctor & Gamble Mfg. Co., 514 N.W.2d 891, 893 (Iowa 1994) (noting the frequent lack of formality in contracts for hire). Here, no terms remained to be negotiated following the May 10 letter, which documented Niday’s conditions of employment in detail. After Niday accepted Roehl’s offer, he informed his current employer of his intent to leave, and Roehl scheduled and funded travel arrangements for his training in Indiana. It would be unusual for Roehl to fund Niday’s trip to Indiana and invest in his training absent affirmation from Niday confirming his intent to work for Roehl provided he could meet all requirements. The contract of hire was formed before Niday left Iowa.

Roehl’s offer, accepted by Niday, is distinguishable from an agreement to enter into an agreement. See, e.g., Air Host Cedar Rapids, Inc. v. Cedar Rapids Airport Comm’n, 464 N.W.2d 450, 452–53 (Iowa 1990) (finding no enforceable contract where terms were indefinite, stating: “It is axiomatic that understandable or ascertainable terms are necessary ingredients for an enforceable contract. A contract generally is not found to exist where the parties agree to a contract on the basis to be settled in the future”). The record shows Roehl intended to be bound by Farvour-Smith’s offer to Niday. And Niday “sp[oke] his … acceptance” in Iowa. See Terry, 631 N.W.2d at 270.

Because the last act necessary to a meeting of the minds—Niday’s acceptance of Roehl’s offer—occurred in Iowa, he was working under a contract of hire made in this state. See id. at 266–67 (citing 99 C.J.S. Workers’ Compensation § 72, at 144–45 (2000) (“Where the worker’s acceptance of an offer of employment is given by telephone, the place of contracting is where the acceptor speaks his or her acceptance.”); Restatement (Second) of Contracts § 64 cmt. c (“To the extent the issue [of where an acceptance takes effect] is referred to the rule governing private contract disputes, … the contract is created at the place where the acceptor speaks or otherwise completes his manifestation of assent.”)); see also Iowa Code § 85.71(1)(b). Because the contract of hire was made in Iowa, and Roehl concedes Niday regularly worked in Iowa, Niday’s claim meets the jurisdictional requirements in section 85.71(1)(b). We reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All Citations
Slip Copy, 2019 WL 1486603 (Table)

Footnotes

1
A “drop yard” is “a small area of land that trucking companies own and allows for drivers to park their trucks and trailers on it.” Trucking Terminology—Truck Driver Lingo, CDL Training Today, https://cdltrainingtoday.com/cdl-training-resources/cdl-studyguide/trucking-terminology/ (last visited Mar. 26, 2019).

2
Karen Cliver, a Roehl administrator, stated in her sworn affidavit Niday was hired “upon the successful completion of training” and assigned a fleet manager “upon being hired.” Roehl presented no additional testimony. The deputy commissioner made no findings regarding the inconsistency of Cliver’s statements with Niday’s account, but the deputy did find Niday’s testimony credible. The fact findings summarized the timeline:
Claimant testified following classroom training, he took a driving test in Indiana. He then began over-the-road training with another driver. Once he began this work, claimant indicated he began to receive a regular paycheck. At the conclusion of this training, claimant completed a final driving test in Gary, Indiana. Upon successful completion, defendant’s employee Gina Sanders called him, introduced herself as his fleet manager, and advised him to proceed to the maintenance shop to pick up his keys and trailer. He then began driving solo routes for defendant.
And later, the deputy’s conclusions of law provided:
The May 2013 conversation and letter served essentially as an agreement to agree to enter into an employment contract upon successful completion of the conditions precedent. These conditions were likely met while claimant participated in the training process in Gary, Indiana; the conditions were most certainly not met while claimant remained in Iowa prior to presenting for training.

3
In Heartland Express, Inc. v. Terry, 631 N.W.2d 260, 266 (Iowa 2001), our supreme court framed the issue on appeal as “whether there was substantial evidence to support the chief deputy’s finding that the contract of hire took place in Iowa,” citing Anstey v. Iowa State Commerce Commission, 292 N.W.2d 380, 384 (Iowa 1980), for the proposition the “substantial evidence test governs review of agency action regarding jurisdictional facts.” But this statement does not mean any issue related to jurisdiction will be undisturbed on appeal if supported by substantial evidence. Instead, Anstey confirmed factual findings related to jurisdiction are treated like any other factual findings. See 292 N.W.2d at 384. Despite branding it a question of substantial evidence, the Terry court went on to correct a legal error, concluding the claimant’s job application could not, as a matter of law, constitute an offer. See 631 N.W.2d at 268–69. Our supreme court has since clarified the importance of pinpointing the question on appeal. See Meyer v. IBP, Inc., 710 N.W.2d 213, 219 (Iowa 2006) (“In sum, when an agency decision on appeal involves mixed questions of law and fact, care must be taken to articulate the proper inquiry for review instead of lumping the fact, law, and application questions together within the umbrella of a substantial-evidence issue.”). We examine an agency’s legal conclusions for soundness even when related to jurisdiction. See, e.g., Heartland Express v. Gardner, 675 N.W.2d 259, 262 (Iowa 2003) (“We typically review a district court’s decision on judicial review for correction of errors at law. This standard dovetails with our review of jurisdictional questions, which is also for correction of errors at law.” (internal citations omitted)); Annett Holdings, Inc. v. Allen, 738 N.W.2d 647, 648–49 (Iowa Ct. App. 2007) (reviewing commissioner’s interpretation of Iowa Code section 85.71 under the “erroneous” standard).

4
“The question of whether a contract of hire exists is ordinarily one of fact.” Parson v. Procter & Gamble Mfg. Co., 514 N.W.2d 891, 893–94 (Iowa 1994). This principle follows from the “general rule of contract law that ‘the determination of the intent of the parties to make a contract, as gathered from what they did and said, is normally a question of fact for the jury, particularly where the terms of the contract are unclear.’ ” Id. (quoting 75A Am. Jur. 2d Trial § 795, at 403 (1991)). Here, the deputy commissioner made no findings regarding the parties’ intent, but did find credible Niday’s testimony that Roehl offered and he accepted the job and corresponding terms during the early-May phone call. The agency’s conclusion the contract of hire was made outside of Iowa was based on its characterization of the communications between Niday and Roehl as merely an “agreement to agree” pending Niday’s fulfillment of the conditions. So too was the district court’s conclusion based on its belief a contract could not be formed until the fulfillment of all conditions contained in an agreement rather than a finding of lack of intent to enter into a contractual relationship.

5
Our supreme court has interpreted section 85.71 as conferring subject matter jurisdiction to the commission over claims arising from extraterritorial injuries. See, e.g., Terry, 631 N.W.2d at 265. So, not surprisingly, the parties dub the issue on appeal as one of subject matter jurisdiction. But in 2008, the legislature amended section 85.71 to add: “This section shall be construed to confer personal jurisdiction over an employee or employer to whom this section is applicable.” 2008 Iowa Acts ch. 1091, § 2. While the distinction is not dispositive in the instant dispute, section 85.71 reads more like a test for extraterritorial jurisdiction or a long-arm statute rather than defining the commission’s subject matter jurisdiction. See Extraterritorial Jurisdiction, Black’s Law Dictionary (10th ed. 2014) (“A court’s ability to exercise power beyond its territorial limits.”); see also Jahnke v. Deere & Co., 912 N.W.2d 136, 142 (Iowa 2018) (discussing the presumption of territorial application of statutes and noting section 85.71 “affirmatively states that it applies to employees injured ‘while working outside the territorial limits of this state’ if certain circumstances are met”); Cargill, Inc. v. Conley, 620 N.W.2d 496, 501 (Iowa 2000) (“ ‘Subject matter jurisdiction is the authority of a court to hear and determine cases of the general class to which the proceedings belong, not merely the particular case then occupying the court’s attention.’ Bailey v. Batchelder, 576 N.W.2d 334, 337 (Iowa 1998). … The problem with Cargill’s argument is that the industrial commissioner did have subject matter jurisdiction of the claim presented to her—a claim for workers’ compensation benefits.”).

6
Alternatively, Niday argues he meets the criteria in subsection (a). Niday asserts, because he received assignments while in Iowa and began and ended every run from his home, his Iowa residence was his “home terminal,” constituting Roehl’s “place of business” under the statute. See Iowa Code § 85.71(1)(a). Because Niday meets the criteria in subsection (b), we need not reach this issue.

7
The Second Restatement of Contracts abandons the terms condition precedent and condition subsequent—instead employing the term “condition” in place of condition precedent, and replacing condition subsequent with “an event terminating a duty.” Restatement (Second) of Contracts § 224 reporters note cmts. c, e (Am. Law Inst. 1981).

8
In its appellate brief, Roehl quotes the following passage from Magnussen Agency v. Public Entity National Co.-Midwest, 560 N.W.2d 20, 26 (Iowa 1997): “An offer that invites an acceptance by performance is deemed accepted by such performance unless there is a manifestation of intention to the contrary.” Although that language from Magnussen describes a unilateral contract, Roehl does not use the term “unilateral contract” in its brief. In fact, Roehl fails to further develop an argument that its contract was unilateral. Roehl does not point to facts or case law supporting a contention the contract was unilateral. See Daeges v. Beh, 224 N.W. 80, 81 (Iowa 1929) (“It is presumed that an offer invited the formation of a bilateral contract by an acceptance amounting, in effect, to a promise by the offeree to perform what the other requests.”); Restatement (First) of Contracts § 31 (Am. Law Inst. 1932) (“In case of doubt it is presumed that an offer invites the formation of a bilateral contract by an acceptance amounting in effect to a promise by the offeree to perform …, rather than the formation of one or more unilateral contracts by actual performance on the part of the offeree.”). Without a more fully-formed argument, we decline to address the possibility the contract was unilateral. See Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (“[W]e will not speculate on the arguments [the parties] might have made and then search for legal authority and comb the record for facts to support such arguments.”).

9
As further clarification, the American Law Institute reporter noted:
When an event that is not normally part of the process of formation of contract is made an event upon which the performance of the contract is dependent, courts often describe it as a condition that must be performed before the contract comes into existence. Similarly, inartistically drafted contracts may contain language such as: “this contract shall not come into existence until Event A occurs.” … [I]t is better to view a contract as already in existence, but with the parties’ respective performances subject to the specified event, which is a condition to their respective performances.
Restatement (Second) of Contracts § 224 reporter’s note cmt. c (citations omitted).

10
Several jurisdictions have concluded, at least under particular circumstances, that a contract is not formed until the conditions are fulfilled. See, e.g., Dhermy v. Illinois Workers’ Comp. Comm’n, No. 4-13-0011WC, 2013 WL 5972176, at *4–5 (Ill. Ct. App. Nov. 8, 2013); Graham v. TSL, Ltd., 350 S.W.3d 430, 432–33 (Ky. 2011); Taylor v. Howard Transp., Inc., 771 S.E.2d 835, 839 (N.C. Ct. App. 2015); Pro Football Inc. v. Paul, 569 S.E.2d 66, 71 (Va. Ct. App. 2002). But we find the decisions from those courts that distinguish formation from enforceability to be more convincing.