Murphy v. Smallridge

• Decision Date: 14 February 1996
• Docket Number: No. 22863,22863
• Citation: 196 W.Va. 35,468 S.E.2d 167
• Court: West Virginia Supreme Court
• Parties: Glen A. MURPHY and Gretchen A. Murphy, Plaintiffs Below, Appellants, v. John D. SMALLRIDGE, Jr., Individually, and John D. Smallridge, Jr., as Trustee for the H.H. Smallridge Trust, U.W., and H.H. Smallridge Trust, U.W., Defendants Below, Appellees.

Page 167

468 S.E.2d 167

196 W.Va. 35

Glen A. MURPHY and Gretchen A. Murphy, Plaintiffs Below, Appellants, v. John D. SMALLRIDGE, Jr., Individually, and John D.

Smallridge, Jr., as Trustee for the H.H.

Smallridge Trust, U.W., and H.H.

Smallridge Trust, U.W.,

Defendants Below, Appellees.

No. 22863.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 16, 1996.

Decided Feb. 14, 1996.

Syllabus by the Court

1. A residential tenant may state an affirmative cause of action for retaliatory eviction if the landlord's conduct is in retaliation for the tenant's exercise of a right incidental to the tenancy.

2. A residential tenant does not have to continue living on the leased premises to preserve a cause of action for retaliatory eviction.

Appeal from the Circuit Court of Kanawha County; Honorable Patrick Casey, Judge, Civil Action No. 92-C-1916.

REVERSED AND REMANDED.

Charles W. Yeager, Andrew L. Paternostro, Rose & Atkinson, Charleston, for Appellants.

Richard G. Conley, Smith & Conley, Charleston, for Appellees.

CLECKLEY, Justice:

The plaintiffs below and appellants herein, Glen A. Murphy and Gretchen A. Murphy, appeal the final order of the Circuit Court of Kanawha County entered on September 14, 1994. In that order, the circuit court granted a motion for summary judgment made by the defendants below and appellees herein, John D. Smallridge, Jr., individually, and

                [196 W.Va. 36] John D. Smallridge, Jr., as Trustee for the H.H. Smallridge Trust, U.W., and H.H. Smallridge Trust, U.W. 1  The plaintiffs argue the circuit court erred when it dismissed their complaint and ruled they failed to state a cause of action
                

I. FACTUAL AND PROCEDURAL BACKGROUND

In their complaint, the plaintiffs allege that on or about May 1, 1990, they entered into a lease agreement with the defendants to rent a house in Charleston, West Virginia. At the expiration of the lease on June 1, 1991, the lease became a month-to-month tenancy. According to the terms of the lease, the defendants could terminate the lease at any time with thirty days written notice. ² The lease also provided that the plaintiffs were to "keep the premises in a neat, clean and orderly fashion, and return the premises to the Lessor in the same condition, reasonable wear and tear excepted." The plaintiffs assert that it became impossible for them to comply with this term of the lease because during their residency the defendants, acting by and through their agent, John D. Smallridge, Jr., began and continued to dump "dirty unsightly trash in the yard of the leased premises."

The plaintiffs state they complained to the defendants about the dumping on numerous occasions between December, 1990, and September, 1991, and asked the defendants to cease dumping on the leased premises. After the defendants failed to respond to the requests, the plaintiffs anonymously reported the dumping to the West Virginia Department of Natural Resources (DNR) on September 23, 1991. On September 26, 1991, an investigator from the DNR inspected the leased premises and notified the defendants that the dumping was illegal.

By letter dated September 27, 1991, the day after the defendants were notified by the DNR, the defendants informed the plaintiffs the lease was being terminated as a result of a change of plans for the leased premises. The plaintiffs were given thirty days to vacate the premises. After some discussion about the personal situation of the plaintiff Gretchen Murphy, the defendants agreed to allow the plaintiffs to remain in the house for an additional $150 per month in rent. ³ Instead, the plaintiffs vacated the premises and filed suit. The primary issue below and on appeal is whether the plaintiffs can state an affirmative cause of action for retaliatory eviction in light of the fact that they vacated the premises and, therefore, do not offer it as a defense to an eviction proceeding. The plaintiffs further assert in their brief that read fairly their complaint also states a cause of action for a breach of the warranty of habitability.

II. STANDARD OF REVIEW

The plaintiffs contend the circuit court erred by dismissing their complaint for failure to state a claim. ⁴ We review de novo a dismissal under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, construing the factual allegations in the light most favorable to the plaintiffs. State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 775-76, 461 S.E.2d 516, 521-22 (1995). Dismissal for failure to state a claim is proper where "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59, 65 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957). An appellate court is not limited to the legal

[196 W.Va. 37] grounds relied upon by the circuit court, but it may affirm or reverse a decision on any independently sufficient ground that has adequate support.

III. RETALIATORY EVICTION AS AN AFFIRMATIVE CAUSE OF ACTION

At common law, a landlord had the authority to "terminate a periodic tenancy for any reason or no reason, through the timely service upon the tenant of a notice to quit." 2 Richard R. Powell, Powell on Real Property p 234 at 16B-81 (1995). (Footnote omitted). However, the freedom of a landlord to terminate a lease has been limited in recent years by public policy that prevents a landlord from evicting a tenant out of retaliation for the tenant exercising certain legal rights. 2 Powell, supra at 16B-81; Retaliatory Eviction of Tenant for Reporting Landlord's Violation of Law, 23 A.L.R.5th 140, 150 (1994). These changes in public policy are reflected in both emerging case law and statutory law. 23 A.L.R.5th at 150.

In the landmark decision of Edwards v. Habib, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969), the United States Court of Appeals for the District of Columbia became the first court to recognize the defense of retaliatory eviction. In Edwards, the tenant rented housing from her landlord on a month-to-month basis. 397 F.2d at 688. The landlord failed to correct certain sanitary code violations so the tenant complained to the Department of Licenses and Inspections (Department). 397 F.2d at 688. Upon inspection, the Department discovered forty violations and ordered the landlord to rectify the situation. 397 F.2d at 688-89. Thereafter, the landlord gave the tenant "a 30-day statutory notice to vacate and obtained a default judgment for possession of the premises." 397 F.2d at 689. (Footnotes omitted).

In holding a tenant cannot be evicted for reporting housing and sanitary code violations, the court of appeals recognized that the "[e]ffective implementation and enforcement of the codes obviously depend in part on private initiative in the reporting of violations." 397 F.2d at 700. Therefore, if retaliatory evictions are permitted, they "would clearly frustrate the effectiveness of the housing code as a means of upgrading the quality of housing in Washington." 397 F.2d at 700-01. (Footnote omitted). Moreover, it not only would punish the tenant for reporting violations "but also would stand as a warning to others that they dare not be so bold[.]" 397 F.2d at 701.

In West Virginia, this Court first addressed the defense of retaliatory eviction in Criss v. Salvation Army Residences, 173 W.Va. 634, 319 S.E.2d 403 (1984). In Criss, one argument raised by the tenants was that W.Va.Code, 55-3A-1, et seq., "denies them an adequate remedy for the defense of retaliatory eviction." ⁵ 173 W.Va. at 640, 319 S.E.2d at 409. We disagreed and, with little discussion, stated that the defense of retaliation specifically exists under W.Va.Code, 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 (1988).

In Imperial Colliery Co., a landlord brought an eviction proceeding against a tenant who in response raised the defense of retaliatory eviction. 179 W.Va. at 777, 373 S.E.2d at 490. The tenant argued the landlord wanted to evict him because he was involved in a labor strike. 179 W.Va. at 777, 373 S.E.2d at 490. The case presented two issues for this Court to resolve. The first issue was "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[.]"

                [196 W.Va. 38] 179 W.Va. at 777, 373 S.E.2d at 490.   The second issue was "whether the retaliation motive must relate to the tenant's exercise of a right incidental to the tenancy."  179 W.Va. at 777, 373 S.E.2d at 490
                

As to the first issue, we analyzed the development of retaliatory eviction from its inception with Edwards, supra. We found that "[m]any states have protected tenant rights either on the Edwards theory or have implied such rights from the tenant's right of habitability." 179 W.Va. at 779, 373 S.E.2d at 492. (Footnotes with citations omitted). Other jurisdictions, we said, have relied upon landlord and tenant reform statutes, such as section 5.101 of the Uniform Residential Landlord and Tenant Act, 7B U.L.A. 503 (1985), ⁷ to protect tenants. In West Virginia, a residential tenant is entitled to fit and habitable housing under W.Va.Code, 37-6-30 (1978), ⁸ and under our previous decision in Teller v. McCoy, 162 W.Va. 367, 253 S.E.2d 114 (1978). ⁹ Upon this basis, we determined in Imperial Colliery Co. that "[i]f 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." 179 W.Va. at 780, 373 S.E.2d at 493. (Citation omitted).

As to the second issue, however, we limited what would be considered protected activity by a tenant to that which is "incidental to the tenancy." 179 W.Va....