Criss v. Salvation Army Residences, No. 16137

CourtSupreme Court of West Virginia
Writing for the CourtNEELY
Citation173 W.Va. 634,319 S.E.2d 403
PartiesCasto J. CRISS, et al. v. SALVATION ARMY RESIDENCES and Hon. Fred L. Fox.
Docket NumberNo. 16137
Decision Date13 July 1984

Page 403

319 S.E.2d 403
173 W.Va. 634
Casto J. CRISS, et al.
v.
SALVATION ARMY RESIDENCES and Hon. Fred L. Fox.
No. 16137.
Supreme Court of Appeals of West Virginia.
July 13, 1984.

Page 404

[173 W.Va. 636] Syllabus by the Court

1. Either party in an action brought under W.Va.Code 55-3A-1 et seq. [1983] is entitled to request a jury trial.

2. The West Virginia Rules of Civil Procedure apply to proceedings brought under W.Va.Code 55-3A-1 et seq. [1983] when those proceedings are in circuit court. To the extent that the time limitations in W.Va.Code 55-3A-1 et seq. [1983] are inconsistent with time periods set forth in the Rules, the time periods in the statute apply.

3. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in

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contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syl. Pt. 1, Hinkle v. Black; W.Va., 262 S.E.2d 744 (1979).

Keith H. Gordon and Mary A. Kenney, North Central Legal Aid Society, Fairmont, for petitioners.

Elizabeth H. Rose, Rose, Southern & Padden, Fairmont, for respondents.

NEELY, Justice:

This is an original proceeding in prohibition in which the petitioners sought, when their petition was filed, to prohibit a trial from being conducted in an eviction action brought against them in the Circuit Court of Marion County. For the reasons set forth below, the writ of prohibition prayed for is awarded as moulded.

The petitioners are residents of William Booth Towers, a federally subsidized low-income housing project owned by Salvation Army Residences, Inc. When they moved into their apartment at Booth Towers the petitioners entered into a rental agreement. The lease was for a period of one year, effective 1 July 1983 to 1 July 1984. On 8 December 1983 the resident manager of the housing project filed a petition against the petitioners pursuant to W.Va.Code 55-3A-1 et seq. [1983] 1 for summary relief for wrongful occupation of residential rental property. It was alleged in the petition that the petitioners had been in material noncompliance with the lease agreement by failing to allow an inspection of their apartment, by interfering with the housing project's management, and by creating a disturbance in the parking lot of the apartments. 2

On 15 December 1983 the petitioners filed a notice of removal seeking to remove the case to circuit court and the following day filed notice of a bona fide defense. Upon receipt of these documents the circuit court scheduled a trial for 20 December 1983. On 19 December 1983 the petitioners answered denying the allegations in the complaint and raising defenses of retaliation 3 and violation of the termination procedures[173 W.Va. 637] required by federal law. Petitioners also filed a counterclaim for damages suffered as a result of the landlord's retaliatory conduct and demanded a jury trial. In addition, the petitioners filed interrogatories,

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a request to produce documents and a motion for continuance.

The circuit court denied the continuance and set a trial date for 22 December 1983, the date on which a jury panel was to be available for another trial. However, when the original jury trial was continued, the court on its own motion, changed the trial date of this case to 17 January 1984. On 28 December 1983 the circuit court sent a letter to counsel for both parties and sua sponte reversed its earlier decision and denied the petitioners' request for a jury trial, dismissed their counterclaim and ruled that the parties could not engage in discovery in an action brought under W.Va.Code 55-3A-1 et seq. [1983]. 4 The court rescheduled the case for 13 January 1984.

On 10 January 1984, Mr. and Mrs. Criss filed a petition for a writ of prohibition in this Court seeking to prohibit the trial of their case. Two days later the petitioners moved for a continuance in the circuit court on the ground that this Court had not yet acted upon their petition. The circuit court denied their motion and trial of the matter began on 13 January 1984 as scheduled. The case was heard by the court without a jury and at the conclusion of the trial the court took the matter under advisement. On 1 February 1984 we issued a rule in prohibition.

The questions before us are: (1) Whether petitioners are entitled to a jury trial; (2) whether they are entitled to file a counterclaim and obtain discovery; (3) whether the summary eviction proceedings established by W.Va.Code 55-3A-1 et seq. [1983] deprive the petitioners of their right to due process; and, (4) whether the same proceedings deny petitioners a lawful right to raise the defense of retaliatory eviction. We find for the petitioners on the first two issues and against them on the third and fourth issues.

I

The Seventh Amendment to the Constitution of the United States preserves the right to trial by jury, "[i]n Suits at common law," where the value of the controversy exceeds twenty dollars. W.Va.Const. art. III, § 13 affords the same right: "In suits at common law, where the value in controversy exceeds twenty dollars exclusive of interest and costs, the right of trial by jury, if required by either party, shall be preserved; ..."

The Supreme Court of the United States has addressed the issue of the right to a jury trial in summary eviction proceedings similar to those in the case before us. In Pernell v. Southall Realty, 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974) a District of Columbia summary eviction statute was involved. At the outset the Court held that the critical element in determining whether one has the right to a jury trial in a civil action is whether the action involves rights and remedies of the sort traditionally enforced in an action at law, rather than an action in equity.

The phrase 'suits at common law' includes not only suits 'which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contra-distinction to those [173 W.Va. 638] where equitable rights alone were recognized, and equitable remedies were administered .... In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.' Parsons v. Bedford, 3 Pet. 433, 447, 7 L.Ed. 732 (1830) (emphasis in original).

The Supreme Court stated that summary eviction proceedings though different in detail from the common law action of ejectment, which was an action at law not in equity, serve the same essential function--

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to permit a plaintiff to evict one who is wrongfully detaining possession and to regain possession himself. The Court noted that in the various common law actions for ejectment or recovery of real property, questions of fact were resolved by a jury 5 and either party involved in the action could demand a jury trial. The Court concluded that because the right to recover possession of real property was a right ascertained and protected by courts at common law,...

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12 practice notes
  • State ex rel. Allen v. Bedell, No. 22359
    • United States
    • Supreme Court of West Virginia
    • January 6, 1995
    ...627 (1984) (granted writ to prohibit magistrate from removing only part of case to circuit court); Criss v. Salvation Army Residences, 173 W.Va. 634, 319 S.E.2d 403 (1984) (granted prohibition because tenant may be evicted before full 6 The modern abuse of the writ of prohibition began in W......
  • Imperial Colliery Co. v. Fout, No. 17428
    • United States
    • Supreme Court of West Virginia
    • September 16, 1988
    ...Imperial's motion in an amended judgment order dated October 8, 1986, relying principally upon Criss v. Salvation Army Residences, 173 W.Va. 634, 319 S.E.2d 403 (1984). The court concluded that the retaliation defense "must derive from, or in some respect be related to, exercise by the tena......
  • State ex rel. West Virginia State Police v. Taylor, No. 24150.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...923, 205 S.E.2d 819 (1974). That the Rules have the force and effect of a statute is unquestioned. Criss v. Salvation Army Residences, 173 W.Va. 634, 639, 319 S.E.2d 403, 408 Third, looking at the purpose of the federal regulation in question, we believe that 28 C.F.R. 20.33 [1990] requires......
  • Vinson v. Hamilton, No. S-4857
    • United States
    • Supreme Court of Alaska (US)
    • June 11, 1993
    ...240 Mont. 450, 784 P.2d 917 (1990); Martin v. Rogers, 42 Ohio App.3d 110, 536 N.E.2d 665 (1987); Criss v. Salvation Army Residences, 173 W.Va. 634, 319 S.E.2d 403 (1984). But see Lum v. Sun, 70 Haw. 288, 769 P.2d 1091 (1989); Alfour Inc. v. Lightfoot, 123 N.J.Super. 1, 301 A.2d 197 The cour......
  • Request a trial to view additional results
12 cases
  • State ex rel. Allen v. Bedell, No. 22359
    • United States
    • Supreme Court of West Virginia
    • January 6, 1995
    ...627 (1984) (granted writ to prohibit magistrate from removing only part of case to circuit court); Criss v. Salvation Army Residences, 173 W.Va. 634, 319 S.E.2d 403 (1984) (granted prohibition because tenant may be evicted before full 6 The modern abuse of the writ of prohibition began in W......
  • Imperial Colliery Co. v. Fout, No. 17428
    • United States
    • Supreme Court of West Virginia
    • September 16, 1988
    ...Imperial's motion in an amended judgment order dated October 8, 1986, relying principally upon Criss v. Salvation Army Residences, 173 W.Va. 634, 319 S.E.2d 403 (1984). The court concluded that the retaliation defense "must derive from, or in some respect be related to, exercise by the......
  • State ex rel. West Virginia State Police v. Taylor, No. 24150.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...923, 205 S.E.2d 819 (1974). That the Rules have the force and effect of a statute is unquestioned. Criss v. Salvation Army Residences, 173 W.Va. 634, 639, 319 S.E.2d 403, 408 Third, looking at the purpose of the federal regulation in question, we believe that 28 C.F.R. 20.33 [1990] requires......
  • Vinson v. Hamilton, No. S-4857
    • United States
    • Supreme Court of Alaska (US)
    • June 11, 1993
    ...240 Mont. 450, 784 P.2d 917 (1990); Martin v. Rogers, 42 Ohio App.3d 110, 536 N.E.2d 665 (1987); Criss v. Salvation Army Residences, 173 W.Va. 634, 319 S.E.2d 403 (1984). But see Lum v. Sun, 70 Haw. 288, 769 P.2d 1091 (1989); Alfour Inc. v. Lightfoot, 123 N.J.Super. 1, 301 A.2d 197 The cour......
  • Request a trial to view additional results

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