MADISON – A judge has denied a motion to set aside a nearly $2 million judgment in a wrongful termination lawsuit.

The court found that the plaintiff properly served Superior Coal Services with all filings in the matter and that Superior had proper notice of the claims set forth against it, and all subsequent hearings, according to the Sept. 15 order.

The case was assigned to Circuit Judge William S. Thompson.

“The court finds that Superior, through its own affidavit, admits it had notice of the claims against it; however, they took no action to protect its interest or respond to the complaint,” the order states. “This is despite the fact that at least two different persons from Superior signed and accepted service for filings in this matter and failed to take any action; Superior had at least four notices of this action.”

The court found that its entry of default judgment was proper and in accordance with the applicable rules and laws and that Superior had failed to demonstrate good cause or excusable neglect for its failure to timely answer the complaint.

“The defendant’s assertion and argument that Cade E. Vogelsong didn’t know what he was doing when he went to the Secretary of State’s Office is without merit,” the order states. “First, Mr. Vogelsong is a college educated, management level employee of a company that employs over 150 people. The burden is on him when he files a document with a governmental entity to know what effect his filing has. Second, the notices that were serviced on the defendant should have informed anyone who actually took the time to read them that there was a lawsuit filed and judgment was going to be rendered against the defendant.”

On Jan. 5, Dallas Adkins properly filed his complaint against Superior in Boone Circuit Court. The defendant failed to answer the plaintiff’s complaint or respond in any other fashion in the matter. Adkins was represented by Nathan Brown of Ferrell & Brown in Williamson.

With no responsive pleadings having been made, the plaintiff filed a motion for default judgment on March 14 and a hearing date was set for April 27. A notice of the hearing was served on the defendant on March 31.

The motion for default judgment was rescheduled for May 18 and a notice of the hearing was served on the defendant on May 4. The defendant failed to appear at the hearing, despite receiving multiple notices.

The court granted the motion for default judgment at the hearing and set a hearing on damages for June 22. The defendant failed to appear for the June 22 hearing on damages, despite receiving notice, and the court entered an order supporting its oral findings that awarded the plaintiff damages in the amount of $1,800,393.

On June 26, the defendant notified the court that it wished to file a motion to set aside the judgment to be heard on Aug. 31. 

“This was the first time anyone from defendant attempted to participate in the case,” the order states.

On Aug. 31, the court heard oral arguments for the motion to set aside judgment.

Both the plaintiff and the court gave Superior more notice than what is required by law and four notices should have been enough, according to the order.

The court ordered the defendant’s motion to set aside judgment be denied.

Boone Circuit Court case number: 17-C-3

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Ferrell & Brown, PLLC
160 East 2nd Avenue
Williamson, WV - 25661

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