¶1concurring.
¶2(Filed July 3, 2002)
¶3I write separately to express certain concerns that the majority’s opinion either fails to address or that are in need of further clarification. When possible, this Court clearly prefers that legal matters be determined on their merits. See McDaniel v. Romano, 155 W.Va. 875, 879, 190 S.E.2d 8, 11 (1972). At the same time, however, this Court fully recognizes the validity of and supports the enforceability of a default judgment that is properly obtained. In light of the finality of such judgments, barring successful Rule 60(b) motions, this Court has a duty to ensure that the requirements necessary for the issuance of default judgments are properly applied.
¶4Lack of Defendant’s “Appearance”
¶5In discussing the distinction between default judgments that are obtained under the provisions of Rule 55(b)(1), as compared to those that result via the procedures of Rule 55(b)(2), the majority singularly focuses on the presence of a “sum certain” as the crucial requisite for proceeding under the former provision of the rule. While a sum certain is necessary to proceed under Rule 55(b)(1), the distinction that determines whether a clerk can enter the judgment or whether the court must enter the judgment is the issue of whether there has been an appearance by the defendant for purposes of this rule. In tailoring its discussion to the narrow issue of a “sum certain,” the majority overlooks the *244significance of the absence of an appearance by the defendant as a critical component of a default judgment that is entered pursuant to Rule 55(b)(1).
¶6Thus, in establishing as a new point of law that “[generally, under Rule 55(b)(1) of the West Virginia Rules of Civil Procedure, when the damages sought by a plaintiff involve a sum certain or a sum which can by computation be made certain, a judgment by default may be entered against a party who has defaulted as to liability without prior notice to that party,” the majority appears to gloss over the essential distinction between default judgments obtained under Rule 55(b)(1) and (b)(2). Only where no appearance has been made by the defendant, can a default judgment be entered under Rule 55(b)(1).
¶7In attempting to distinguish those instances that properly fall under Rule 55(b)(1) from those required to proceed under Rule 55(b)(2), the majority should have followed the distinction used in the rule itself. Rule 55(b)(1) is labeled to apply only to those limited instances when a clerk is authorized to enter the default judgment, while Rule 55(b)(2) covers all the remaining instances, which require the active involvement of the circuit court judge in the process of entering judgment. See generally, Wright, supra at § 2684 (noting limited instances when default judgment can be entered under Rule 55(b)(1) and recognizing that in all other instances, including those in which “defendant is in default for a reason other than a failure to appear,” application for judgment must proceed under Rule 55(b)(2)).
¶8Oral Communication Constituting an “Appearance”
¶9In establishing what constitutes an “appearance” for purposes of the notice requirement that attaches under the provisions of Rule 55(b)(2), the majority states that any communication, be it oral or written, suffices to constitute an “appearance,” provided that such communication “demonstrates either an interest in the pending litigation, or actual notice of the litigation.” In formulating this new law, the majority leaves unanswered several related concerns. I am concerned that when this law is applied, the practicing lawyers may find themselves without the necessary guidance to proceed. This is because, in elevating to a syllabus point the concept of oral communications being sufficient to constitute an “appearance” under Rule 55,
¶10Other courts that have considered this issue have made clear that not just any oral communication will suffice to constitute an appearance for purposes of invoking the notice requirement of Rule 55(b)(2). As the court made clear in Alliance Group, Inc. v. Rosenfield, 115 Ohio App.3d 380, 685 N.E.2d 570 (1996), “[a] telephone call between parties would not constitute an appearance unless circumstances give the call some legal effect.” Id. at 577. Generally, an affirmative act is required that manifests an intention to defend the action. See id.; accord Miaonisburg Motel v. Huntington Nat’l Bank, 88 Ohio App.3d 117, 623 N.E.2d 163, 170 (1993) (recognizing that telephone call that indicates to moving party clear purpose to defend the suit is sufficient to constitute appearance and trigger notice requirements under Rule 55); see generally Scott K. *245Zesch, What Constitutes “Appearance” under Rule 55(b)(2) of Federal Rules of Civil Procediere, Providing that if Party Against Whom Default Judgment is Sought has “Appeared" in Action, that Party must be Served ivith Notice of Application for Judgment, 139 A.L.R. Fed. 603, § 9[a], [b] (1997). Not all conversations, however, will be sufficient to amount to an appearance under the rule. See, e.g., Ryan v. Collins, 481 S.W.2d 85, 88 (Ky.1972) (holding that defendant had not “voluntarily taken a step in the main action that showed or from which it might be inferred that he had the intention of making some defense” where defendant had conversation with plaintiffs attorney regarding pending action and plaintiffs counsel merely instructed defendant to take summonses to insurance company).
¶11While the issue of whether an “appearance” results from an oral communication will necessarily be a factual determination based on the nature of the conversation, as a general rule an “appearance” will result from a communication that conveys a clear intent to defend against the lawsuit at issue and may also be implied by language that indicates the defendant has taken or intends to take some steps related to the pending action that are either beneficial to the defendant or detrimental to the plaintiffs interests. See Heleasco Seventeen, Inc. v. Drake, 102 F.R.D. 909, 912 (D.Del.1984). Missing from the majority’s adoption of this new point of law permitting an oral communication to constitute an “appearance” is the clarification that the communication must involve an indication on the defendant’s part to take some action relative to the lawsuit. Absent such an affirmative indication, an oral communication is unlikely to rise to the level of the “appearance” necessary to trigger the notice requirements of Rule 55(b)(2).
¶12Practitioner Pointers
¶13Despite the fact that Rule 55(b)(1) clearly allows default judgments to be taken in instances where no appearance has been made by the defendant and there is a “sum certain,” I respectfully suggest to practitioners that it is by far the better practice to send notice of a default judgment application whenever counsel has sufficient information from which to serve such notice upon the defendant or defendant’s counsel. Notice should be given to all parties who, despite the non-filing of formal pleadings, have nonetheless indicated a clear purpose to defend the suit by means of communication with the moving party.
¶14Based on the foregoing, I respectfully concur with the majority’s decision.
¶15. While perhaps the majority intended to implicitly refer to the lack of an appearance in referencing the entry of a default as to liability, this is not accurate because the default as to liability may have been entered on a basis other than the lack of an appearance.
¶16. This position had previously only been recognized by this Court in notes accompanying two of our decisions. See Farm Family Mut. Ins. Co. v. Thorn Lumber Co., 202 W.Va. 69, 75, n. 9, 501 S.E.2d 786, 792 n. 9 (1998); accord Colonial Ins. Co. v. Barrett, 208 W.Va. 706, 709, n. 2, 542 S.E.2d 869, 872 n. 2 (2000).
¶17. See Miamisburg, 623 N.E.2d at 170. By applying Rule 55 in this fashion, the court in Miamisburg observed that “informal, honest communication between the parties to a lawsuit Twill be fostered] ... [and] may lead to the resolution of disputes without resort to the legal process.” Icl.; see also Zesch, supra, at § 2[b] (recognizing that “most federal courts appear to be primarily concerned with the good faith of the moving party and fairness to the defaulting parly” and that "[cjonsequently, courts may take into account whether the moving party attempted to obtain a default judgment by stealth”).
¶18concurring in part, and dissenting in part.
¶19(Filed July 11, 2002)
¶20While I agree that National’s intransigence in this ease justifies a finding of default as to liability, I take issue with the majority’s action in reversing the resulting award of damages. Specifically, I disagree with the majority’s assertion in syllabus point five of the Court’s opinion that for purposes of West Virginia Rule of Civil Procedure 55(b)(2), an “appearance” by a party to a litigation may consist of nothing more than an oral or written communication to the opposing party demonstrating an interest in the pending litigation.
¶21As the majority opinion readily admits, our past cases dealing with this issue are in conflict. In Intercity Realty Co. v. Gibson, 154 W.Va. 369, 374-76, 175 S.E.2d 452, 455 (1970), this Court expressly rejected the notion that mere oral communication between counsel constitutes an appearance under *246Rule 55(b)(2). More recently, however, in dictum contained in Farm Family Mutual Ins. Co. v. Thorn Lumber Co., 202 W.Va. 69, 501 S.E.2d 786 (1998), we indicated that “[t]he term ‘appeared in the action’ for purposes of Rule 55(b)(2) is quite different from an appearance for other purposes (such as establishing personal jurisdiction).” Id.at 75 n. 9, 501 S.E.2d at 792 n. 9. I see no valid reason why we should give divergent meanings to this term of art, particularly as there are sound policy reasons for resolving this conflict by adhering to the stance this Court originally took in Intercity Realty.
¶22Even the federal courts, from where we derive Rule 55(b)(2), are not unanimous as to what constitutes an appearance in this context. In Anderson v. Taylorcraft, Inc., 197 F.Supp. 872 (W.D.Pa.1961), an appearance with respect to Rule 55(b)(2) was described as “ordinarily an overt act by which a party comes into a court and submits himself to its jurisdiction.” Id. at 874 (citation omitted). Following this standard, the Seventh Circuit, in Zuelzke Tool & Engineering Co., Inc. v. Anderson Die Castings, Inc., 925 F.2d 226 (7th Cir.1991), declined to find that “informal settlement negotiations” between parties could amount to making an appearance under Rule 55(b)(2):
[A] party “has appeared in the action” under Rule 55(b)(2) only where that party has actually made some presentation or submission to the district court in the pending action. Such an interpretation is consistent with traditional and accepted legal parlance in which “appearance” is defined as “a coming into court as a party to a suit, either in person or by an attorney, whether as plaintiff or defendant.”
¶23Id.at 230 (quoting Black’s Law Dictionary 89 (5th Ed.1979)) (emphasis in original).
¶24In Town and Country Kids, Inc. v. Protected Venture Inv. Trust # 1, Inc., 178 F.R.D. 453 (E.D.Va.1998), the district court found that a notarized deposition sent from defendant’s to plaintiffs counsel, suggesting the possibility of settlement, was not enough to constitute an appearance under Rule 55(b)(2). That court reasoned that “requiring a party to make at least some submission to the district court is necessary to apprise the court of ... whether that party has an interest in defending the suit.” Id. at 455. Likewise, in Rogers v. Hartford Life and Accident Insurance Co., 167 F.3d 933 (5th Cir.1999), the court would not accept the defendant’s claim that its waiver of service of process constituted an appearance under the rule: “We will not interpret the phrase ‘appeared in the action’ so broadly as to eviscerate the appearance requirement of Rule 55(b)(2).” Id. at 937.
¶25These authorities emphasize the importance of keeping a trial court informed of the status of pending litigation. “Efficient court management and reliability of judicial process is enhanced by court records which disclose the critical procedural actions of the parties — such as the entry of an appearance.” Zuelzke, 925 F.2d at 230. Interpreting Rule 55(b)(2) so broadly as to allow an appearance to be predicated upon “any communication to an opposing party that demonstrates either an interest in the pending litigation, or actual notice of the litigation,” as the majority does in the present case, will inevitably lead to confusion and disorganization in the lower courts. A simple acknowledgment by a party of having received notice of pending litigation does not reveal to anyone, most importantly the circuit court, what that party’s intentions are with respect to defending the action. See Rogers, 167 F.3d at 938 (‘Waiver of service of process does not in any way indicate that a defendant intends to defend.”). This is nowhere more evident than in the instant case, where National’s response to a waiver of subrogation request obviously did not signal its intent to defend the present action.
¶26Although I recognize the importance of giving a defendant an opportunity to defend against an application for default judgment, the Court should not go out of its way to find an appearance based upon communications that may indicate nothing more than de min-imis attention to the litigation. As the Seventh Circuit emphasized in Zuelzke, “it is a disservice to the legal system to distort the meaning of a concrete term such as ‘appearance’ in order to provide a mechanism to save a party from a default judgment.” 925 F.2d at 230. With this admonition in mind, I *247would adopt the Zuelzke court’s approach to resolving this issue.
¶27Therefore, I respectfully concur with Part III.B of the majority opinion respecting National’s default as to liability, but dissent from Part III.A of the opinion, which reverses the circuit court’s award of damages. National was not entitled to notice under Rule 55(b)(2) because it never made a proper appearance in the action prior to the entry of a default judgment.