Schupbach v. Newbrough
| Decision Date | 02 March 1984 |
| Docket Number | No. 15689,15689 |
| Citation | 313 S.E.2d 432,173 W.Va. 156 |
| Court | West Virginia Supreme Court |
| Parties | Terry Dale SCHUPBACH, et al. v. James W. NEWBROUGH, et al. |
Syllabus by the Court
1. A party who, with his lawyer, appears at a hearing at its scheduled time and place may thereby waive his claim that he had no notice of the hearing.
2. A Rule 60(b) motion for relief from judgment must be ruled upon by a trial court before the matters argued in the motion may be considered by the Supreme Court of Appeals.
Richard A. Bush, William E. Kiger, Parkersburg, for appellant.
Elmer Earl Bowser, Jr., New Martinsville, for appellee.
The Tyler County Circuit Court enjoined the Schupbachs from interfering with the Newbroughs' use of a right-of-way across their property, and we are asked to reverse and remand for a new trial.
In December, 1980, the Schupbachs sued the Newbroughs to prevent them from going across their property to get to the Newbrough home, and for damages. The Newbroughs answered, denied the allegations, and counterclaimed for an injunction to prevent the Schupbachs from interfering with their use of the right-of-way, and for damages. The Newbroughs received a temporary restraining order, and a hearing on the temporary injunction was scheduled for December 19, postponed by agreement until February, 1981, and then continued generally by an order specifying that either party could apply for rescheduling upon ten days' notice.
During the spring and summer the Schupbachs and their attorney had surveys made, contacted former landowners, obtained evidence and deposed Mr. Newbrough. In October, 1981, the Schupbachs' attorney noticed the Newbroughs' lawyer that he would ask that the case be set for jury trial during the next court term.
However, when the court called the matter to set a trial date at the first day of the next term, October 13, 1981, 1 Schupbachs' attorney was not present. The Newbroughs' lawyer attended the docket setting, at which trial was scheduled for November 17, 1981 at 9:00 a.m. We have no evidence about how the Schupbachs or their lawyer were informed of the trial date, but apparently no notice was sent to any parties or their attorneys about the date, about what issues would be tried, or whether there would be a jury trial.
But on November 17, the case was called and Mr. Newbrough with his lawyer were present in the courtroom. The judge asked if the plaintiffs were there and defense counsel said he had seen plaintiffs' attorney in the hall moments earlier. The trial court then asked defendants' counsel if 1:30 p.m. would be convenient for the trial. Counsel agreed and asked the court for a view.
Then Schupbach and his attorney entered the courtroom. The court notified everyone that because there was a jury trial in progress, he was rescheduling their case to 1:30 that afternoon. Schupbach's counsel asked the court why he had not been notified earlier so he could have avoided charging his client for this appearance. Then he asked to have a jury trial on both the injunction and damages issues rather than separate trials, saying that two trials were too expensive for his client. The Newbroughs' counsel reminded the court that it had been planned that the injunction would be tried to the court that day, and that the judge had deferred setting the jury trial on damages for another time. Plaintiffs' attorney objected strenuously, but the court continued to maintain that the injunction would be tried at 1:30 p.m.
Schupbach's counsel objected again, then asked the court to continue the matter so that he could seek a writ of prohibition from this Court. The judge refused and reiterated that trial would start at 1:30 p.m. Counsel then asked the judge to recuse himself, but he ruled the recusal motion untimely.
Finally, counsel informed the court that he was going to telegraph this Court and seek prohibition. A telegram, confirmed by mailgram, was sent here at 11:54 a.m. asking us to prohibit the trial judge from proceeding in the cause, to have him recused, to vacate and set aside any orders entered after 1:30 p.m. that day, and for other relief including attorney's fees. We did not respond.
Trial commenced at 1:30 p.m. as scheduled, but Schupbach and his lawyer did not appear. Mr. Schupbach filed an affidavit here averring that his attorney told him not to appear at trial that afternoon because he was going to appeal to us.
Defendants presented their evidence and the court, by memorandum opinion dated November 24, 1981 and an order dated November 30, permanently enjoined the Schupbachs from interfering with the Newbroughs' use of the existing road and from harassing, intimidating and embarrassing the Newbroughs about their use of the road.
The Schupbachs then hired another lawyer who sought relief from judgment by a W.Va. Rules of Civil Procedure Rule 60(b) proceeding and filed this appeal. The trial court has not yet decided the Rule 60(b) motion.
The Schupbachs contend that they did not have proper notice of the hearing on the injunction as required by the W.Va. Rules of Civil Procedure, the Trial Court Rules for Courts of Record, W.Va.Code, 53-5-8, and were denied due process. They also complain that their attorney consented to entry of judgment against them without their authority, and therefore, they are entitled to a trial.
W.Va.Code, 53-5-8 provides, in part, that after a temporary injunction issues:
at any time prior to final adjudication, any party to the proceedings, after reasonable notice to all other parties of record, which notice shall not in any case exceed five days, may move for a hearing on any particular issues or phases of the case which may properly be heard interlocutorily. Such hearing may, in the discretion of the court or judge, be had at the time the motion is made but shall be commenced within the ten days next thereafter, unless by consent of all parties appearing the hearing is continued until a later date. At any such hearing, in term time or in vacation, any party to the proceedings may be present in person or by counsel and may present such witnesses, cross-examine witnesses and offer such testimony and evidence as may be pertinent to the issues then before the court or judge, as the case may be. The court or judge, upon such hearing and the record in the case, shall render a decision without delay, and may continue or dismiss the injunction or may enlarge or modify the same, as may be warranted.
The February 11 hearing met this statutory requirement and was continued by agreement of the parties in accord with Code, 53-5-8. The order stated: "Any party may, upon ten (10) days written notice, make application to this Court for the rescheduling of the above hearing."
There is nothing in the record to indicate what kind of notice the Schupbachs and their attorney got about the date of the November 17 hearing, but they knew about it and appeared, prepared to go to trial. They even objected strenuously to the trial court's severance of the injunction issue from the damages issue and wanted both heard that day in a single trial.
The due process clauses of our State and Federal Constitutions afford parties the procedural rights of notice and opportunity to be heard. U.S. Const. amend. XIV; W.Va....
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...due process protections such as notice and an opportunity to be heard are scrupulously applied."); Schupbach v. Newbrough, 173 W.Va. 156, 158, 313 S.E.2d 432, 435 (1984) ("The due process clauses of our State and Federal Constitutions afford parties the procedural rights of notice and oppor......
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...due process protections such as notice and an opportunity to be heard are scrupulously applied."); Schupbach v. Newbrough, 173 W.Va. 156, 158, 313 S.E.2d 432, 435 (1984) ("The due process clauses of our State and Federal Constitutions afford parties the procedural rights of notice and oppor......
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...to accept the fact that a Rule 60(b) motion is appropriate to challenge the dismissal of a plaintiff's case. In Schupbach v. Newbrough, 173 W.Va. 156, 313 S.E.2d 432 (1984), the appellants asserted that the circuit court erred in granting a right-of-way on their property. The gist of their ......
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