Imperial Colliery Co. v. Fout, No. 17428

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation179 W.Va. 776,373 S.E.2d 489
Decision Date16 September 1988
Docket NumberNo. 17428
PartiesIMPERIAL COLLIERY COMPANY v. Danny H. FOUT.

Page 489

373 S.E.2d 489
179 W.Va. 776
IMPERIAL COLLIERY COMPANY

v.
Danny H. FOUT.
No. 17428.
Supreme Court of Appeals of
West Virginia.
Sept. 16, 1988.

Page 490

[179 W.Va. 777] Syllabus by the Court

Retaliation may be asserted as a defense to a summary eviction proceeding under W.Va.Code, 55-3A-1, et seq., if the landlord's conduct is in retaliation for the tenant's exercise of a right incidental to the tenancy.

Charles F. Donnelly, United Mine Workers of America, Charleston, for Danny H. Fout.

Larry W. Blalock, Jackson, Kelly, Holt & O'Farrell, Charleston, for Imperial Colliery Co.

MILLER, Justice:

Danny H. Fout, the defendant below, appeals a summary judgment dismissing his claim of retaliatory eviction based on the provisions of W.Va.Code, 55-3A-3(g), 1 which is our summary eviction statute. Imperial Colliery had instituted an eviction proceeding and Fout sought to defend against it, claiming that his eviction was in retaliation for his participation in a labor strike.

This case presents two issues: (1) whether a residential tenant who is sued for possession of rental property under W.Va.Code, 55-3A-1, et seq., may assert retaliation by the landlord as a defense, and (2) whether the retaliation motive must relate to the tenant's exercise of a right incidental to the tenancy.

Fout is presently employed by Milburn Colliery Company as a coal miner. For six years, he has leased a small house trailer lot in Burnwell, West Virginia, from Imperial Colliery Company. It is alleged that Milburn and Imperial are interrelated companies. 2 A written lease was signed by Fout and an agent of Imperial in June, 1983. This lease was for a primary period of one month, and was terminable by either party upon one month's notice. An annual rental of $1.00 was payable in advance on January 1 of each year. No subsequent written leases were signed by the parties.

[179 W.Va. 778] On February 14, 1986, Imperial advised Fout by certified letter that his lease would be terminated as of March 31, 1986. Fout's attorney corresponded with Imperial before the scheduled termination date. He

Page 491

advised that due to various family and monetary problems, Fout would be unable to timely vacate the property. Imperial voluntarily agreed to a two-month extension of the lease. A second letter from Fout's attorney, dated May 27, 1986, recited Fout's personal problems and requested that Imperial's attempts to oust Fout be held "in abeyance" until they were resolved. A check for $1.00 was enclosed to cover the proposed extension. Imperial did not reply.

On June 11, 1986, Imperial sued for possession of the property, pursuant to W.Va.Code, 55-3A-1, et seq., in the Magistrate Court of Kanawha County. Fout answered and removed the suit to the circuit court on June 23, 1986. He asserted as a defense that Imperial's suit was brought in retaliation for his involvement in the United Mine Workers of America and, more particularly, in a selective strike against Milburn. Imperial's retaliatory motive was alleged to be in violation of the First Amendment rights of speech and assembly, and of the National Labor Relations Act, 29 U.S.C. § 151, et seq. Fout also counter-claimed, seeking an injunction against Imperial and damages for annoyance and inconvenience.

After minimal discovery, Imperial moved for summary judgment. The circuit court granted 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 tenant of rights incident to his capacity as a 'tenant'." Since Fout's participation in the labor strike was admittedly unrelated to his tenancy, the defense was dismissed and possession of the property was awarded to Imperial. It is from this order that Fout appeals.

Our initial inquiry is whether retaliation by the landlord may be asserted by the tenant as a defense in a suit under W.Va.Code, 55-3A-3(g). We addressed this issue in Criss v. Salvation Army Residences, supra, and stated without any extended discussion that this section "specifically provides for the defense of retaliation." 173 W.Va. at 640, 319 S.E.2d at 409. We did not have occasion in Criss to trace the development of the retaliatory eviction defense.

It appears that the first case that recognized retaliatory eviction as a defense to a landlord's eviction proceeding was Edwards v. Habib, 397 F.2d 687 (D.C.Cir.1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969). There, a month-to-month tenant who resided in a District of Columbia apartment complex reported to a local health agency a number of sanitary code violations existing in her apartment. The agency investigated and ordered that remedial steps be taken by the landlord, who then advised Edwards that her lease was terminated. When the landlord sued for possession of the premises, Edwards alleged the suit was brought in retaliation for her reporting of the violations. A verdict was directed for the landlord and Edwards appealed.

On appeal, the court reviewed at length the goals sought to be advanced by local sanitary and safety codes. It concluded that to allow retaliatory evictions by landlords would seriously jeopardize the efficacy of the codes. A prohibition against such retaliatory conduct was therefore to be implied, even though the regulations were silent on the matter. 3

Page 492

[179 W.Va. 779] Many states have protected tenant rights either on the Edwards theory 4 or have implied such rights from the tenant's right of habitability. 5 Others have utilized statutes analogous to section 5.101 of the Uniform Residential Landlord and Tenant Act, 7B U.L.A. 503 (1985), 6 which is now adopted in fifteen jurisdictions. 7 Similar landlord and tenant reform statutes in seventeen other states also provide protection for tenancy-related activities. 8

Under W.Va.Code, 37-6-30, a tenant is, with respect to residential property, entitled to certain rights to a fit and habitable dwelling. 9 In Teller v. McCoy, 162

Page 493

[179 W.Va. 780] W.Va. 367, 253 S.E.2d 114 (1978), we spoke at some length of the common law right of habitability which a number of courts had developed to afford protection to the residential tenant. We concluded that these rights paralleled and were spelled out in more detail in W.Va.Code, 37-6-30. In Teller, we also fashioned remedies for the tenant where there had been a breach of the warranty of habitability. 10 However, we had no occasion to discuss the retaliatory eviction issue in Teller.

The central theme underlying the retaliatory eviction defense is that a tenant should not be punished for claiming the benefits afforded by health and safety statutes passed for his protection. These statutory benefits become a part of his right of habitability. If the right to habitability is to have any meaning, it must enable the tenant to exercise that right by complaining about unfit conditions without fear of reprisal by his landlord. See Annot., 40 A.L.R.3d 753 (1971). 11

After the seminal decision in Edwards, other categories of tenant activity were deemed to be protected. Such activity was protected against retaliation where it bore a relationship to some legitimate aspect of the tenancy. For example, some cases provided protection for attempts by tenants to organize to protect their rights as tenants. Others recognized the right to press complaints directly against the landlord via oral communications, petitions, and "repair and deduct" remedies. E.g., Robinson v. Diamond Housing Corp., 463 F.2d 853 (D.C.Cir.1972); Schweiger v. Superior Court, 3 Cal.3d 507, 476 P.2d 97, 90 Cal.Rptr. 729 (1970); Engler v. Capital Management Corp., 112 N.J.Super. 445, 271 A.2d 615 (Ch.Div.1970); E. & E. Newman, Inc. v. Hallock, 116 N.J.Super. 220, 281 A.2d 544 (App.Div.1971); Toms Point Apartments v. Goudzward, 72 Misc.2d 629, 339 N.Y.S.2d 281 (1972), aff'd, 79 Misc.2d 206, 360 N.Y.S.2d 366 (1973); Portnoy v. Hill, 57 Misc.2d 1097, 294 N.Y.S.2d 278 (1968); Powell, Real Property p 260.6 (1986); Restatement (Second) of Property § 14.8 (1977).

A few courts recognize that even where a tenant's activity is only indirectly related to the tenancy relationship, it may be protected against retaliatory conduct if such conduct...

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5 practice notes
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ..."offers no shield" against private conduct (internal quotations and citation omitted)). For example, in Imperial Colliery Co. v. Fout, 179 W.Va. 776, 781 n. 13, 373 S.E.2d 489, 494 n. 13 (1988), we It is now settled law that the[] [Fourteenth] Amendment[] [to the United States Constitution]......
  • State ex rel. Anstey v. Davis, No. 25155-25158.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1998
    ...116, 246 S.E.2d 270 (1978); McClung v. Marion County Commission, 178 W.Va. 444, 360 S.E.2d 221 (1987); and Imperial Colliery Co. v. Fout, 179 W.Va. 776, 373 S.E.2d 489 (1988). It is important to note that the elements set forth above apply only in the prison 11. While the appellant, Charles......
  • ESPENSCHIED v. MALLICK, No. 90-CV-1247
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 18, 1993
    ...and which raise the presumption of retaliatory defense"); 40 A.L.R.3d 740 (1970 & 1992 Supp.). 8. See, e.g., Imperial Colliery v. Fout, 179 W. Va. 776, 373 S.E.2d 489, 493 (1988) ("If the right to habitability is to have any meaning it must enable the tenant to exercise that right by compla......
  • Murphy v. Smallridge, No. 22863
    • United States
    • Supreme Court of West Virginia
    • February 14, 1996
    ...55-3A-3(g) (1983). 6 Later, we revisited and more fully explained the doctrine of retaliatory eviction in Imperial Colliery Co. v. Fout, 179 W.Va. 776, 373 S.E.2d 489 In Imperial Colliery Co., a landlord brought an eviction proceeding against a tenant who in response raised the defense of r......
  • Request a trial to view additional results
5 cases
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ..."offers no shield" against private conduct (internal quotations and citation omitted)). For example, in Imperial Colliery Co. v. Fout, 179 W.Va. 776, 781 n. 13, 373 S.E.2d 489, 494 n. 13 (1988), we It is now settled law that the[] [Fourteenth] Amendment[] [to the United States Constitution]......
  • State ex rel. Anstey v. Davis, No. 25155-25158.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1998
    ...116, 246 S.E.2d 270 (1978); McClung v. Marion County Commission, 178 W.Va. 444, 360 S.E.2d 221 (1987); and Imperial Colliery Co. v. Fout, 179 W.Va. 776, 373 S.E.2d 489 (1988). It is important to note that the elements set forth above apply only in the prison 11. While the appellant, Charles......
  • ESPENSCHIED v. MALLICK, No. 90-CV-1247
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 18, 1993
    ...and which raise the presumption of retaliatory defense"); 40 A.L.R.3d 740 (1970 & 1992 Supp.). 8. See, e.g., Imperial Colliery v. Fout, 179 W. Va. 776, 373 S.E.2d 489, 493 (1988) ("If the right to habitability is to have any meaning it must enable the tenant to exercise that right by compla......
  • Murphy v. Smallridge, No. 22863
    • United States
    • Supreme Court of West Virginia
    • February 14, 1996
    ...55-3A-3(g) (1983). 6 Later, we revisited and more fully explained the doctrine of retaliatory eviction in Imperial Colliery Co. v. Fout, 179 W.Va. 776, 373 S.E.2d 489 In Imperial Colliery Co., a landlord brought an eviction proceeding against a tenant who in response raised the defense of r......
  • Request a trial to view additional results

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