Steak Escape of Kanawha City II, LLC d/b/a Steak Escape, and Josh Macleery v. Jason Hudson

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
Spring 2025 Term
March 20, 2025
_____________________ released at 3:00 p.m.
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
No. 24-ICA-173 OF WEST VIRGINIA
_____________________

STEAK ESCAPE OF KANAWHA CITY II, LLC D/B/A STEAK ESCAPE,
and JOSH MACLEERY,
Defendants Below, Petitioners,

v.

JASON HUDSON,
Plaintiff Below, Respondent.

___________________________________________________________

Appeal from the Circuit Court of Kanawha County

Honorable Jennifer F. Bailey, Judge

Civil Action No. CC-20-2022-C-706

AFFIRMED, in part, REVERSED, in part, and REMANDED
_________________________________________________________

Submitted: February 5, 2025
Filed: March 20, 2025

Andrew F. Maunz, Esq. Rodney A. Smith, Esq.
Jackson Lewis P.C M. Alex Urban, Esq.
Pittsburgh, Pennsylvania Rod Smith Law PLLC
Counsel for Petitioners Charleston, West Virginia

Robert P. Lorea, Esq.
Lorea Law Office PLLC
Charleston, West Virginia
Counsel for Respondent
JUDGE DANIEL W. GREEAR delivered the Opinion of the Court.
GREEAR, JUDGE:

Petitioners, Steak Escape of Kanawha City II, LLC d/b/a Steak Escape

(“Steak Escape”) and Josh Macleery (collectively “Petitioners”), appeal the March 21,

2024, judgment order, and the September 18, 2023, order of the Circuit Court of Kanawha

County, upholding the default judgment against Petitioners1 and the award of monetary

damages against them totaling $132,704.80.2 On appeal, Petitioners argue that the circuit

court erred in upholding the default judgment against Steak Escape, as it was not properly

served with a copy of Respondent Jason Hudson’s (“Mr. Hudson”) underlying complaint.3

Further, Petitioners contend the circuit court erred in denying their motion to set aside the

default judgment for good cause based on the factors contained in Parsons v. Consolidated

Gas Supply Corp., 163 W. Va. 464, 256 S.E.2d 758 (1979); that the punitive damage award

against them was improper; and that the award of attorney’s fees to Mr. Hudson was not

reasonable.

After our review of the record, we find that Steak Escape was not properly

served with a copy of Mr. Hudson’s underlying complaint. However, we find that the

In its September 18, 2023, order, the circuit court set aside default judgment against
1

Defendant Michael Hill, who is not party to this appeal.

The damages awarded by the circuit court included $15,400 in compensatory
2

damages, $50,000 in punitive damages, and $67,304.80 in attorney’s fees.
3
On appeal, Plaintiffs do not allege that personal service upon Mr. Macleery was
defective.

1
circuit court did not abuse its discretion in upholding the default judgment against Mr.

Macleery, nor did the circuit court abuse its discretion in awarding punitive damages and

attorney fees against Mr. Macleery. Therefore, we reverse the circuit court’s award of

default judgment as to Steak Escape; affirm the circuit court’s award of default judgment,

punitive damages, and attorney’s fees as to Mr. Hudson’s underlying claims against Mr.

Macleery; and remand the case to circuit court for further proceedings consistent with this

opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND
On August 24, 2022, Mr. Hudson filed his underlying complaint in the

Circuit Court of Kanawha County, alleging he was wrongfully terminated from his job at

Steak Escape after he was diagnosed with ulnar palsy for which he sought workplace

accommodations and time off for a neurologist appointment. Mr. Hudson further alleged

claims of discrimination based upon an actual or perceived disability, failure to

accommodate, and reprisal in violation of the West Virginia Human Rights Act

(“WVHRA”). In his underlying complaint, Mr. Hudson named Steak Escape, Josh

Macleery (Steak Escape’s general manager) and Michael Hill (Steak Escape’s shift

supervisor) as defendants.

On September 8, 2022, Mr. Macleery was personally served a packet of

documents, including the summons and Mr. Hudson’s complaint (“summons and

complaint”) naming him as a defendant, at the Steak Escape franchise located at 3700

2
MacCorkle Avenue in Charleston by a Kanawha County Deputy Sheriff. When questioned

by the Deputy Sheriff about service of Steak Escape, Mr. Macleery indicated that the

correct address for service of Steak Escape was in Ohio. The Deputy Sheriff did not leave

the summons and complaint directed to Steak Escape with Mr. Macleery; however, the

Deputy Sheriff did leave the summons and complaint for Michael Hill with Mr. Macleery.

Mr. Hudson also mailed a copy of the summons and complaint directed to

Steak Escape to the West Virginia Secretary of State (“WVSOS”). The WVSOS received

the mailing on September 12, 2022, and attempted to forward the summons and complaint

to Steak Escape’s designated agent, John D. Smallridge, Jr., at the address for service of

process designated by Steak Escape.4 After three attempts by the United States Postal

Service, the forwarded summons and complaint were returned to the WVSOS as

“undeliverable as addressed.”

On September 26, 2022, Mr. Hudson’s counsel received a collection of

documents, postmarked on September 22, 2022, from Steak Escape’s Columbus, Ohio

office. Among other things, this collection of documents included a joint response to

plaintiff’s interrogatories from Mr. Macleery and Mr. Hill. However, no answer, or any

responsive or other pleading, was filed on behalf of Steak Escape or Messrs. Macleery or

4
The address designated by Steak Escape in their WVSOS filing is 1013 ½ Quarrier
Street, Charleston, WV 25301.
3
Hill. Further, no attorney filed a notice of appearance on behalf of Steak Escape or Messrs.

Macleery or Hill in the underlying matter.

On December 19, 2022, Mr. Hudson filed a motion for default judgment,

which was mailed to the Petitioners’ Charleston, West Virginia location. On January 11,

2023, the circuit court entered its order finding Petitioners in default due to their failure to

file an answer, notice of appearance, or response to the motion for default judgment. On

January 20, 2023, Mr. Hudson served a notice of the hearing on damages, scheduled for

March 3, 2023, by mailing copies of the notice to Messrs. Macleery and Hill, and Steak

Escape at both Steak Escape’s principal place of business in Charleston, West Virginia,

and the corporate office in Columbus, Ohio. Further, on that same day, Mr. Hudson’s

counsel personally contacted Mr. Macleery at the Steak Escape location in Charleston,

West Virginia, location and informed him of the hearing.

On March 1, 2023, Petitioners, through counsel, filed an emergency motion

to set aside the default judgment. The circuit court held a hearing on that motion on March

3, 2023. At the conclusion of the hearing, the circuit court ordered Mr. Hudson to conduct

limited depositions of Petitioners. On June 23, 2023, the circuit court held another hearing

and further ordered Steak Escape to provide evidence to the court regarding its ability to

receive mail sent to the address on file at the WVSOS.

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The June 23, 2023, hearing was held to address both Mr. Hudson’s damages

and Petitioners’ motion to set aside the default judgment. Following the hearing, the circuit

court entered its September 18, 2023, order denying the motion to set aside the default

judgment and set an evidentiary hearing on damages. On October 2, 2023, the circuit court

conducted an evidentiary hearing on damages. On March 21, 2024, the circuit court entered

its judgment order granting Mr. Hudson compensatory damages, punitive damages, and

attorney’s fees. It is from the September 18, 2023, and March 21, 2024, orders that this

appeal arises.

II. STANDARD OF REVIEW

We review default judgments under an abuse of discretion

standard. See Groves v. Roy G. Hildreth & Son, Inc., 222 W. Va. 309, 314, 664 S.E.2d 531,

536 (2008) (per curiam). “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 such discretion.” Id. at 314, 664 S.E.2d at

536 (citation omitted). Further, the appellant bears the burden of proof to show that there

was error in the proceeding below, with all presumptions being in favor of the trial

court. See id.

We review challenges to punitive damages awards under a de novo standard.

Syl. Pt. 16, Peters v. Rivers Edge Mining, Inc., 224 W. Va. 160, 680 S.E.2d 791 (2009),

superseded by statute on other grounds as stated in Martinez v. Asplundh Tree Expert Co.,

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239 W. Va. 612, 803 S.E.2d 582 (2017) (“When reviewing an award of punitive damages

in accordance with Syllabus point 5 of Garnes v. Fleming Landfill, Inc., 186 W. Va. 656,

413 S.E.2d 897 (1991), and Syllabus point 5 of Alkire v. First National Bank of

Parsons, 197 W. Va. 122, 475 S.E.2d 122 (1996), this Court will review de novo the jury's

award of punitive damages and the circuit court's ruling approving, rejecting, or reducing

such award.”) Regarding attorney’s fees, “we apply an abuse of discretion standard when

reviewing the lower court’s award of attorney fees.” CIT Bank, N.A. v. Coffman, 250 W.

Va. 464, __, 904 S.E.2d 466, 476 (2024) (citation omitted).

III. DISCUSSION

On appeal, Petitioners argue four assignments of error, which we will address

in turn. First, Petitioners contend that Steak Escape was not properly served with a copy of

Mr. Hudson’s summons and complaint. We agree.

As to this assignment of error, the issue before us is whether service of

process was achieved upon Steak Escape through the WVSOS. West Virginia Code § 31B-

1-111(c) (2017) allows for service on a limited liability company (such as Steak Escape)

via the WVSOS as attorney-in-fact.5 “Service of any process [. . .] on the Secretary of State

5
While the parties to this appeal and the court below cited West Virginia Code §
31D-5-504(c) regarding the attempted service of process of Steak Escape, that statute deals
with the service of corporations. West Virginia Code § 31B-1-111(c) is the statute which
deals with service of limited liability companies through the Secretary of State. The
operative language of these statutes is identical and the applicable analysis would be the
same.
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may be made by delivering to and leaving with the Secretary of State [. . .] the original

process, notice or demand and two copies thereof for each defendant, along with the

[required fee].” Id. Following receipt by the WVSOS, the WVSOS is required to

immediately transmit a copy of the filing by registered or certified mail to the company’s

registered agent.

Such service or acceptance of process, notice or demand is
sufficient if the return receipt is signed by an agent or employee
of such company, or the registered or certified mail so sent by
the Secretary of State is refused by the addressee and the
registered or certified mail is returned to the Secretary of State,
showing the stamp of the United States Postal Service that
delivery thereof has been refused, and such return receipt or
registered or certified mail is received by the Secretary of State
by a means which may include electronic issuance and
acceptance of electronic return receipts.

See id. While this statute regarding limited liability companies has not been addressed by

the Supreme Court of Appeals of West Virginia (“SCAWV”), the parallel statute regarding

service of corporations with identical language has been. “Under [West Virginia Code], §

31D–5–504(c) [2002], service of process or notice upon a domestic corporation through

the Secretary of State is insufficient when a registered or certified mailing of the process

or notice is neither accepted nor refused by an agent or employee of the corporation.”6 Syl.

Pt. 2, Burkes v. Fas-Chek Food Mart Inc, 217 W. Va. 291, 617 S.E.2d 838 (2005). As the

6
The 2017 effective language of West Virginia Code § 31D-5-504(c) is
substantively and substantially the same as the 2002 version of the statute.

7
statute for service upon a limited liability company is identical in language to West Virginia

Code § 31D-5-504(c), we find that the same principles would apply in the instant case.

In its September 18, 2023, order denying Petitioners’ motion to set aside

default judgment, the circuit court found that Steak Escape was served by mail through the

WVSOS. The court found that Steak Escape had actual knowledge of the lawsuit, and

failed to provide the court with satisfactory evidence that it could receive mail at the

address provided to the WVSOS. Critical to our review is the evidence that the service of

process sent through the WVSOS was returned “undeliverable as addressed.” As discussed

above, West Virginia Code § 31B-1-111(c) states that service of process is sufficient if the

mailing is signed for by an agent or employee of the corporation or returned “refused.” In

the instant case, neither of those things happened. No agent or employee of Steak Escape

signed for the service of process, nor was the service of process returned “refused.” Thus,

pursuant to West Virginia Code § 31B-1-111(c) and Burkes, the return of process to the

WVSOS as “undeliverable as addressed” is insufficient to constitute service on Steak

Escape, as it was neither an acceptance nor a refusal of the certified mail.7 Therefore, we

find that the circuit court abused its discretion in determining that Steak Escape was

7
With respect the validity of Steak Escape’s listed address for service, there is no
authority, statutory or otherwise, for the circuit court’s imposition of a burden on Steak
Escape to prove the legitimacy of the address for service listed with the WVSOS. In that
regard, the only evidence in the record indicating that Steak Escape’s address was not
correct was the return of the certified mail as undeliverable. Pursuant to Burkes, this fact
alone is not sufficient to establish service in a manner not specifically contemplated by the
statute.
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properly served. This finding is dispositive of Steak Escape’s appeal and, therefore, we

will address the three remaining assignments of error as to Mr. Macleery only.

Turning to the surviving claims against Mr. Macleery, Petitioners argue that

the circuit court erred in denying the motion to set aside the default judgment for good

cause based on the Parsons factors. We disagree.

In determining whether a default judgment should be entered
in the face of a Rule 6(b) motion or 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.

Syl. Pt. 3, Parsons, 163 W. Va. 464, 256 S.E.2d 758 (1979). Below, the circuit court

focused on the fourth Parsons factor and determined that Mr. Macleery had demonstrated

complete intransigence. Specifically, the circuit court found, and the record supports, that

Mr. Macleery was personally served on September 8, 2022. Mr. Macleery failed to file an

answer to the complaint or cooperate in the litigation in any way other than filing a brief

response to Mr. Hudson’s interrogatories. Following the award of default judgment, Mr.

Hudson’s counsel spoke to Mr. Macleery to attempt to schedule the next hearing on

damages, but Mr. Macleery did not cooperate. An emergency motion to set aside the default

judgment wasn’t filed until March 1, 2023, nearly six months later. In fact, the record

reflects that Mr. Macleery only obtained counsel after the default judgment was entered

against him. His motion to set aside the default judgment was filed only two days prior to

the originally scheduled evidentiary damages hearing. Based on these facts, we find no

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error in the circuit court’s finding of Mr. Macleery’s “complete intransigence.” While the

court’s September 18, 2023, order did not include an analysis of the remaining Parsons

factors, even if these factors weighed in favor of Mr. Macleery, based on the record before

us, we cannot find that the circuit court abused its discretion in denying the motion to set

aside the default judgment. See Lee v. Gentlemen’s Club, Inc., 208 W. Va. 564, 568, 542

S.E.2d 78, 82 (2000) (“any evidence of intransigence on the part of the defaulting party

should be weighed heavily against him in determining the propriety of a default

judgment”).

Petitioners next argue that the punitive damages award against Mr. Macleery

was improper. Specifically, Petitioners contend that the circuit court failed to cite the

correct standard of clear and convincing evidence for awarding punitive damages; that the

evidence does not support a finding of punitive damages; and that the amount of punitive

damages were not supported. Based upon our review of the record before us, we disagree.

The SCAWV has stated that:

[A]n award of punitive damages may only occur in a civil
action against a defendant if a plaintiff establishes by clear and
convincing evidence that the damages suffered were the result
of the conduct that was carried out by the defendant with actual
malice toward the plaintiff or a conscious, reckless and
outrageous indifference to the health, safety and welfare of
others.

Syl. Pt. 12, Jordan v. Jenkins, 245 W. Va. 532, 859 S.E.2d 700 (2021). Due to the default

judgment entered against Mr. Macleery, which we uphold on appeal, all allegations made

10
in Mr. Hudson’s complaint are deemed admitted.8 Thus, Mr. Macleery’s arguments fail as

the complaint alleges conduct sufficient to support a claim for punitive damages.

In his complaint, Mr. Hudson alleges violations of the WVHRA for disability

discrimination and reprisal, failure to accommodate, and aiding and abetting disability

discrimination. As to all three counts, Mr. Hudson alleged that Mr. Macleery’s actions were

willful and/or with reckless indifference to the rights of Mr. Hudson. We find the

allegations in the complaint, as well as Mr. Hudson’s testimony from the October 2, 2023,

hearing, support the circuit court’s determination that “[Mr.] Macleery’s actions were

willful, mean-spirited acts with a clear intent to cause physical or emotional harm such that

an award of punitive damages is justified.” Judgment Order at A.R. 640. Specifically, the

complaint stated that Mr. Hudson was told to “suck it up” when asking for accommodations

due to his diagnosis of ulnar nerve palsy. In his complaint, Mr. Hudson alleged that after

informing his employer of his condition and need for accommodations, retaliation against

him began in the form of taunting, false and/or unfair job performance evaluations, and

reprimands for being too slow at his job. The complaint further alleged that after requesting

time off for a neurology appointment, and within thirty days of reporting the disability, Mr.

Hudson’s employment at Steak Escape was terminated. Further still, Mr. Hudson testified

that Mr. Macleery hassled him over his disability, and he was called names in the

workplace such as “slow” and “retarded.” Based on these uncontested allegations, we find

8
See West Virginia Rules of Civil Procedure Rule 8(b)(6).
11
no error in the circuit court’s determination that punitive damages were justified by clear

and convincing evidence.

Further, we find no error in regard to the amount of punitive damages

awarded against Mr. Macleery. West Virginia Code § 55-7-29(c) (2015) states “[t]he

amount of punitive damages that may be awarded in a civil action may not exceed the

greater of four times the amount of compensatory damages or $500,000, whichever is

greater.” Here, the punitive damages award was $50,000, a sum well below $500,000, and

less than four times the amount of compensatory damages. Additionally, the circuit court

assessed the factors to be considered in accordance with Garnes v. Fleming Landfill, Inc.,

186 W. Va. 656, 413 S.E.2d 897 (1991), Syl. Pts. 3 & 4, and TXO Production Corp. v.

Alliance Resources Corp., 187 W. Va. 457, 419 S.E.2d 870 (1992), Syl. Pt. 15., in

considering the amount of punitive damages to be awarded against Mr. Macleery. In

Garnes, the SCAWV held:

When the trial court instructs the jury on punitive damages, the
court should, at a minimum, carefully explain the factors to be
considered in awarding punitive damages. These factors are as
follows:
(1) Punitive damages should bear a reasonable relationship to
the harm that is likely to occur from the defendant's conduct as
well as to the harm that actually has occurred. If the defendant's
actions caused or would likely cause in a similar situation only
slight harm, the damages should be relatively small. If the harm
is grievous, the damages should be greater.
(2) The jury may consider (although the court need not
specifically instruct on each element if doing so would be
unfairly prejudicial to the defendant), the reprehensibility of
the defendant's conduct. The jury should take into account how
long the defendant continued in his actions, whether he was

12
aware his actions were causing or were likely to cause harm,
whether he attempted to conceal or cover up his actions or the
harm caused by them, whether/how often the defendant
engaged in similar conduct in the past, and whether the
defendant made reasonable efforts to make amends by offering
a fair and prompt settlement for the actual harm caused once
his liability became clear to him.
(3) If the defendant profited from his wrongful conduct, the
punitive damages should remove the profit and should be in
excess of the profit, so that the award discourages future bad
acts by the defendant.
(4) As a matter of fundamental fairness, punitive damages
should bear a reasonable relationship to compensatory
damages.

Garnes, 186 W. Va. at 658, 413 S.E.2d at 899, Syl. Pt. 3.

When the trial court reviews an award of punitive damages, the
court should, at a minimum, consider the factors given to the
jury as well as the following additional factors:
(1) The costs of the litigation;
(2) Any criminal sanctions imposed on the defendant for his
conduct;
(3) Any other civil actions against the same defendant, based
on the same conduct; and
(4) The appropriateness of punitive damages to encourage fair
and reasonable settlements when a clear wrong has been
committed. A factor that may justify punitive damages is the
cost of litigation to the plaintiff.

Id. at 659, 413 S.E.2d at 900, Syl. Pt. 4.

Further,

[t]he outer limit of the ratio of punitive damages to
compensatory damages in cases in which the defendant has
acted with extreme negligence or wanton disregard but with no
actual intention to cause harm and in which compensatory
damages are neither negligible nor very large is roughly 5 to 1.
However, when the defendant has acted with actual evil
intention, much higher ratios are not per se unconstitutional.

TXO Production Corp., 187 W. Va. at 461, 419 S.E.2d at 874, Syl. Pt. 15.

13
Here, Mr. Macleery concedes that the circuit court applied these punitive

damage standards but takes issue with the circuit court’s findings related to only one factor,

relationship to the harm caused. We find Mr. Macleery’s argument in this regard

unconvincing. As discussed above, the record establishes that Mr. Hudson was subjected

to willful and mean-spirited acts at the hands of his fellow Steak Escape employees. These

acts provide a reasonable basis to allow the $50,000 punitive award to stand. Therefore,

we find no error in the circuit court’s award, or the amount of punitive damages.

In their final assignment of error, Petitioners assert that the circuit court

abused its discretion in its award of attorney’s fees to Mr. Hudson. The sole argument

advanced by Petitioners is that the attorney’s fees awarded were largely a result of the

limited discovery (depositions) ordered by the circuit court, which the court “largely

ch[o]se to disregard in determining that it would not set aside the default judgment.”

Petitioners’ argument in this regard was raised in a cursory manner, was skeletal in nature,

and lacked any reasonable specificity or meaningful explanation.

As this Court reasoned in its recent opinion in Moschonas v. Charles Town

General Hospital, ___ W. Va. ___, ___ S.E.2d ___, 2025 WL 414851, at *10 (2025):

[t]his court is not required to address arguments which are
raised in such a perfunctory manner. See Megan W. v. Robert
R., No. 23-ICA-353, 2024 WL 1592600, at *5 (W. Va. Ct. App.
Feb. 27, 2024) (memorandum decision) (“It is well established
that, ‘[a] skeletal “argument,” really nothing more than an
assertion, does not preserve a claim[.]’” (quoting State v.
Lambert, 236 W. Va. 80, 100, 777 S.E.2d 649, 669 (2015); see

14
also State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613,
621 (1996) (“issues which are . . . mentioned only in passing .
. . are not considered on appeal”)).

Despite the skeletal nature of Petitioners’ argument as to attorney’s fees,

when considering this issue on the merits, we find the circuit court did not abuse its

discretion. The circuit court analyzed the award of attorney’s fees under Aetna Cas. & Sur.

Co v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986)9 and found that the time and labor

expended, in conjunction with the additional depositions, briefings, and hearings

conducted, were all reasonable. This Court has no basis in fact or law to conclude that the

circuit court abused its discretion in awarding Mr. Hudson attorney’s fees and, accordingly,

we affirm the same.

IV. CONCLUSION

For the foregoing reasons, we affirm the March 21, 2024, judgment order,

and the September 18, 2023, order of the Kanawha County Circuit Court, as it applies to

Mr. Macleery. We reverse the default judgment in regard to Steak Escape and remand for

further proceedings consistent with this opinion.

9
The reasonableness of attorney's fees is generally based on broader factors such
as: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the
skill requisite to perform the legal service properly; (4) the preclusion of other employment
by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the undesirability of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases. Syl. Pt. 4, Aetna
Cas. & Sur. Co v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986).
15
Affirmed, in part, Reversed, in part, and Remanded.

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