Allegheny Development Corp., Inc. v. Barati

• Decision Date: 19 December 1980
• Docket Number: No. 14055,14055
• Citation: 273 S.E.2d 384,166 W.Va. 218
• Parties: The ALLEGHENY DEVELOPMENT CORP., INC., etc. v. Julius S. BARATI.
• Court: West Virginia Supreme Court

Page 384

273 S.E.2d 384

166 W.Va. 218

The ALLEGHENY DEVELOPMENT CORP., INC., etc. v. Julius S. BARATI.

No. 14055.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1980.

Syllabus by the Court

1. "The mere existence of a legal remedy is not of itself sufficient ground for refusing relief in equity by injunction; nor does the existence or non-existence of a remedy at law afford a test as to the right to relief in equity. It must also appear that it is as practical and efficient to secure the ends of justice and its prompt administration as the remedy in equity." Pt. 2, Syl., Consumers Gas Utility Co. v. Wright, 130 W.Va. 508, 44 S.E.2d 584 (1947), quoting, Pt. 2, Syl., Buskirk v. Sanders, 70 W.Va. 363, 73 S.E. 937 (1912).

2. As a general rule the order of introducing testimony during a trial rests within the sound discretion of the trial court, and a departure from the usual order of introduction of evidence does not constitute error unless it amounts to an abuse of discretion.

3. "The onus probandi is on him who alleges fraud, and, if the fraud is not strictly and clearly proved as it is alleged, relief cannot be granted." Pt. 1, Syl., Board of Trustees v. Blair, 45 W.Va. 812, 32 S.E. 203 (1899).

4. The party who alleges payment as a defense has the burden of proving it.

5. "The general rule is that an unaccepted offer to compromise a disputed claim is not admissible as evidence against the party making such offer." Pt. 4, Syl., McMillen v. Dettore, W.Va., 242 S.E.2d 459 (1978), quoting, Shaeffer v. Burton, 151 W.Va. 761, 155 S.E.2d 884 (1967).

Clark B. Frame, Morgantown, for appellant.

Mike Magro, Jr., Morgantown, for appellee.

PER CURIAM:

This is an appeal from an order entered by the Circuit Court of Preston County on December 29, 1976, enjoining the appellant, Julius S. Barati, from trespassing and committing waste upon a 136 acre tract of land. Mr. Barati contends that the circuit court lacked jurisdiction to award equitable relief, that the court improperly placed the burden of opening and closing upon him, and that the court, by procedural rulings, denied him a fair trial. We conclude that the assignments of error are without merit, and we affirm the decision of the circuit court.

Mr. Barati owned the 136 acre tract of land which is at the center of this controversy. In May 1973 he applied for, and received, a $32,500.00 loan from the Bruceton Bank. To secure the loan, he executed a deed of trust covering the 136 acre tract. Subsequently, he failed to make payments due on the note, and the Bank notified the trustee under the deed of trust to sell the property. The appellee, The Allegheny Development Corporation, Inc., was the high bidder at the sale, and subsequently it received a deed to the tract.

Mr. Barati refused to vacate the premises after the trustee's sale, and he or his lessees or licensees proceeded to strip the overburden from coal on the property. The Allegheny Development Corporation, Inc., then instituted this proceeding. In its complaint Allegheny prayed for an order enjoining Mr. Barati from interfering with its possession and from committing waste. It also prayed for compensatory damages resulting from Mr. Barati's retention and destruction of the property.

After the filing of the complaint, Mr. Barati chose to represent himself, and he filed a pro se answer and numerous pro se pleadings.

By order entered September 21, 1976, the Circuit Court of Preston County ruled that Mr. Barati's answer contained redundant, immaterial, impertinent, and/or scandalous matter and ordered a portion of that answer stricken under Rule 12(f) of the Rules of Civil Procedure. The court, however, also concluded that Mr. Barati had raised two legitimate defenses: (1) whether he had been induced to execute the deed of trust, which was the source of Allegheny's title, by fraud and false misrepresentation; and (2) whether there had been a default on the note such as would justify a sale of the property under the deed of trust.

On November 8, 1976, the circuit court, after giving the parties ample notice, conducted a trial in the case. At the commencement of trial the judge indicated that he would call a jury and that, "(t)he Jury will be in effect an advisory Jury and will be asked to determine the two issues: The one question of fraud or false misrepresentation and (the other question of) default in the payment."

Also, at the commencement of trial the judge said:

In this case, the Court has ruled that the defendant, Julius S. Barati, has the burden of proof on the defense he has asserted, therefore the Defendant will have the right to open and close. He will have the right to make his opening statement first and during the testimony he will have the right to introduce his evidence first and he will have the right to make the first closing argument and the last closing argument.

Mr. Barati made no objection to this ruling by the court.

Mr. Barati's first assignment of error is that the Circuit Court of Preston County lacked jurisdiction to hear and act in Allegheny's injunction proceeding when Allegheny had adequate and immediately available remedies at law to gain possession of the property and to recover damages for trespass or waste.

While the general rule is that where the remedy at law is plain, complete, and adequate a court of equity is without jurisdiction to grant injunctive relief, ¹ we recognized in Syl. pt. 2, Consumers Gas Utility Co. v. Wright, 130 W.Va. 508, 44 S.E.2d 584 (1947) that:

The mere existence of a legal remedy is not of itself sufficient ground for refusing relief in equity by injunction; nor does the existence or non-existence of a remedy at law afford a test as to the right to relief in equity. It must also appear that it is as practical and efficient to secure the ends of justice and its prompt administration as the remedy in equity. Pt. 2, Syl., Buskirk v. Sanders, 70 W.Va. 363, 73 S.E. 937 (1912).

In the leading case of Pardee v. Camden Lumber Co., 70 W.Va. 68, 73 S.E. 82 (1911), Judge Poffenbarger examined the question of when there is a practical and adequate remedy at law for a trespass to real estate and when such trespass will support the award of an injunction. He said:

Of course the legal remedy is adequate, if the trespass amounts to nothing more than the trampling of the grass or throwing down of the fences, acts in no way affecting the substance of the estate, but the adequacy of the remedy in such cases does not argue efficacy in those cases in which a part of the real estate is actually severed and carried away to the injury and detriment of the inheritance. Id., at 73, 73 S.E. at 85.

See, Webber v. Offhaus, 135 W.Va. 138, 62 S.E.2d 690 (1950); Waldron v. Ritter Lumber Co., 70 W.Va. 470, 74 S.E. 687 (1912); Williamson v. Jones, 43 W.Va. 562, 27 S.E. 411 (1897).

Allegheny's complaint alleged that Mr. Barati had removed top soil, rock, and road building materials from the 136 acre tract in issue. Obviously such a trespass involved the severing and carrying away of part of the inheritance, and no award of damages or other relief could restore the real estate to its former status quo. The reasoning enunciated in Pardee, supra, dictates that an allegation of such a trespass will support an award of equitable relief.

Mr. Barati's second claim is that the trial court erred in requiring him to open and close in the presentation of evidence. He argues that at all times the burden of proof was on the plaintiff and that the court's action denied him an opportunity to present his case effectively.

As a general rule the order of introducing testimony during a trial rests within the sound discretion of the trial court, and a departure from the usual order of introduction of evidence does not constitute error unless it amounts to an abuse of discretion. Edmiston v. Wilson, 146 W.Va. 511, 120 S.E.2d 491 (1961); Farley v. Farley, 136 W.Va. 598, 68 S.E.2d 353 (1951); Keatley v. Hanna Chevrolet, 121 W.Va. 669, 6 S.E.2d 1 (1939); Weaver v. Wheeling Traction Co., 91 W.Va. 528, 114 S.E. 131 (1922); State v. Weisengoff, 89 W.Va. 279, 109 S.E. 707 (1921); State v. Williams, 49 W.Va. 220, 38 S.E. 495 (1901); Clarke v. Ohio River Railroad Co., 39 W.Va. 732, 20 S.E. 696 (1894); Johnson v. Burns, 39 W.Va. 658, 20 S.E. 686 (1894); Lewis v. Alkire, 32 W.Va. 504, 9 S.E. 890 (1889); Bowyer v. Knapp and Martin, 15 W.Va. 277 (1879).

Closely related to the question of the right to open and close and the order in which evidence is presented is the question of burden of proof. Generally the party having the burden of proof should open and close. See, McCary v. Monongahela Valley Traction Co., 97 W.Va. 306, 125 S.E. 92 (1924); Huffman v. Alderson's Adms., 9 W.Va. 616 (1876). Where fraud is claimed we have said:

The onus probandi is on him who alleges fraud, and, if the fraud is not strictly and clearly proved as it is alleged, relief cannot be granted. Syllabus Point 1, Board of Trustees v. Blair, 45 W.Va. 812, 32 S.E. 203 (1899).

See, Hutchinson v. Walton, 119 W.Va. 709, 196 S.E. 20 (1938); Atkinson v. Jones, 110 W.Va. 463, 158 S.E. 650 (1931); Swope v Wade, 106 W.Va. 265, 145 S.E. 384 (1928); Kesling v. Mick, 103 W.Va. 485, 138 S.E. 386 (1927).

Regarding the burden of proof for one alleging payment, we have held that the party who alleges payment has the burden of proving it. Saunders v. Huffman, 119 W.Va. 31, 192 S.E. 297 (1937); Linn v. Collins, 77 W.Va. 592, 87 S.E. 934 (1916); Dodrills Exrs. v. Gregory's Admr., 60 W.Va. 118, 53 S.E. 922 (1906).

The sole issues before the trial court were whether the execution of the deed of trust was induced by fraud and whether Mr. Barati had avoided default by making payment. Mr. Barati asserted both defenses, and under the principles related above, the burden of proving both defenses was upon him. Inasmuch as the party having the burden of proof should usually open and close, we cannot hold that the trial judge...