State ex rel. Veard v. Miller

• Decision Date: 06 October 2016
• Docket Number: No. 16–0346,16–0346
• Citation: 795 S.E.2d 55
• Court: West Virginia Supreme Court
• Parties: State of West Virginia ex rel. Jon Veard; Verd–Masontown Limited Partnership; and United Property Management Company, Petitioners v. Honorable Lawrance S. Miller, Jr., Circuit Judge for the Eighteenth Judicial Circuit, and Arthur J. Summers, Respondents

795 S.E.2d 55

State of West Virginia ex rel. Jon Veard; Verd–Masontown Limited Partnership; and United Property Management Company, Petitioners

v.Honorable Lawrance S. Miller, Jr., Circuit Judge for the Eighteenth Judicial Circuit, and Arthur J. Summers, Respondents

No. 16–0346

Supreme Court of Appeals of West Virginia.

Submitted: September 21, 2016

Filed: October 6, 2016

Richard M. Wallace, J. Todd Bergstrom, Littler Mendelson, Morgantown, West Virginia, Attorneys for Petitioners.

Jacques R. Williams, Brianna W. McCardle, Hamstead, Williams & Shook, Morgantown, West Virginia, Attorneys for Respondents.

Davis, Justice:

This is a writ of prohibition proceeding brought under the original jurisdiction of this Court by Petitioners, defendants below, Jon Veard, Veard–Masontown Limited Partnership, and United Property Management Company. The Petitioners seek to prohibit enforcement of an order by the Circuit Court of Preston County which denied their motion to dismiss three counts of a complaint filed against them by the Respondent, plaintiff below, Arthur J. Summers.¹ In this proceeding, the Petitioners seek to prohibit enforcement of an order that consolidated the complaint with an appeal of a magistrate court decision brought by Respondent; dismissal of Counts I and II; and a stay of the litigation of Count IV pending resolution of the magistrate court appeal. After a careful review of the briefs, the appendix record, and listening to the argument of the parties, we grant the writ as moulded.

I.FACTUAL AND PROCEDURAL HISTORY

The limited record in this matter reveals that on August 15, 2015, the Petitioners, acting under the trade name of Plum Hill Terrace Apartments ("Plum Hill"), filed a petition in the Magistrate Court of Preston County seeking to have the Respondent evicted from one of their apartments.² The Respondent filed a pro se answer and asserted a counterclaim seeking unpaid wages in the amount of $5,000.³ A hearing was held on October 19, 2015. At that hearing, it was determined that the Respondent had moved from the apartment and that the Petitioners had recovered possession of the same. Thereafter the hearing proceeded on the counterclaim for wages brought by Respondent. The magistrate entered an order on October 19, 2015, dismissing the Petitioners' complaint as moot, and rendering a verdict against Respondent on his counterclaim. The Respondent filed an appeal to circuit court.

On or about December 7, 2015, the Respondent, through counsel, filed a complaint in circuit court against the Petitioners.⁴ In the body of the complaint, the Respondent alleged that the Petitioners were "operating a multi-family housing complex in Masontown ..., under the name of Plum Hill Terrace Apartments." In Count I of the complaint, the Respondent sought damages for unpaid wages in the amount of $6,700 under the theory of quantum meruit. In Count II, the Respondent sought liquidated damages in the amount of $20,100 for failure to pay wages timely as required by the West Virginia Wage Payment and Collection Act.⁵ Count IV of the complaint sought damages for wrongful termination under Harless v. First National Bank in Fairmont , 162 W.Va. 116, 246 S.E.2d 270 (1978). On December 9, 2015, the Respondent filed a motion in circuit court seeking to dismiss the magistrate court appeal without prejudice. In the motion, the Respondent admitted that the magistrate ruled against him "on the issue of unpaid wages." The motion also stated that the Respondent was seeking dismissal without prejudice "in the unlikely event that it should prove necessary to revive it within the one year provided by statute."

On December 22, 2015, the circuit court entered an order consolidating the Respondent's magistrate court appeal with his circuit court original complaint, "for all purposes and all events including pre-trial discovery, motions and hearings, and trial." The order also stated that the court would allow the Respondent to renew his motion to dismiss the magistrate court appeal at a later date. The Petitioners filed a motion to dismiss Counts I, II, and IV of the complaint on January 29, 2016. In that motion, the Petitioners alleged that the counts should be dismissed because the issues involved were litigated in the magistrate court proceeding. The Respondent filed a response to the motion to dismiss and argued that the motion should be denied because (1) the magistrate court proceeding was not final, and (2) there was no privity in the magistrate court proceeding against Plum Hill and the Petitioners in the circuit court proceeding. The circuit court entered an order on March 8, 2016, denying the motion to dismiss. The order denying the motion is type written. However, a handwritten entry was made on the order which states that the court finds "[t]he parties are not the same in these 2 consolidated cases new and additional parties are in case # 15–C–190 [the original complaint filed in circuit court]." The Petitioners thereafter filed a petition for a writ of prohibition with this Court.

II.STANDARD OF REVIEW

This matter was brought as an original jurisdiction petition for a writ of prohibition. We held in the single Syllabus point of State ex rel. Vineyard v. O'Brien , 100 W.Va. 163, 130 S.E. 111 (1925), that "[t]he writ of prohibition will issue only in clear cases where the inferior tribunal is proceeding without, or in excess of, jurisdiction."See Syl. pt. 1, State ex rel. Progressive Classic Ins. Co. v. Bedell , 224 W.Va. 453, 686 S.E.2d 593 (2009). Guidelines for issuing the writ have been stated as follows:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syl. pt. 4, State ex rel. Hoover v. Berger , 199 W.Va. 12, 483 S.E.2d 12 (1996).

Our "review of a circuit court's order [denying] a motion to dismiss a complaint is de novo ." State ex rel. Skyline Corp. v. Sweeney , 233 W.Va. 37, 40, 754 S.E.2d 723, 726 (2014) (internal quotations and citation omitted). A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure should only be granted when "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Murphy v. Smallridge , 196 W.Va. 35, 36, 468 S.E.2d 167, 168 (1996) (internal quotations and citation omitted). We also have recognized that

a court may consider, in addition to the pleadings, documents annexed to it, and other materials fairly incorporated within it. This sometimes includes documents referred to in the complaint but not annexed to it. Further, Rule 12(b)(6) permits courts to consider matters that are susceptible to judicial notice.

Forshey v. Jackson , 222 W.Va. 743, 747, 671 S.E.2d 748, 752 (2008) (quoting Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., "Litigation Handbook on West Virginia Rules of Civil Procedure," § 12(b)(6)[2], at 348 (3d ed. 2008)). With these standards in mind, we now turn to the merits of this proceeding.

III.DISCUSSION

A. Consolidation of Magistrate Court Appeal with Circuit Court Action

The first issue raised by the Petitioners is that the circuit court's consolidation of Respondent's magistrate court appeal and his circuit court action was erroneous as a matter of law.⁶ The Petitioners also argue that the consolidation order allows the magistrate court appeal to be subject to full discovery and a jury trial, in contravention of Rule 18 of the Rules of Civil Procedure for Magistrate Courts and W. Va. Code § 50–5–12 (1994) (Repl. Vol. 2016). The circuit court's order stated that it had authority under Rule 42(a) of the West Virginia Rules of Civil Procedure to consolidate the cases "for all purposes and all events including pre-trial discovery, motions and hearings, and trial."⁷

As previously noted, the circuit court relied upon Rule 42(a) to consolidate the cases. Under Rule 42(a), the following is provided:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. An action is pending before the court within the meaning of this subdivision if it is pending before the court on an appeal from a magistrate .

(Emphasis added). It does not appear that this Court has ever been called upon to determine the meaning of the last sentence of Rule 42(a).⁸ The original drafters of our rules of civil procedure explained this provision as follows:⁹

This subdivision [Rule 42(a) ] is identical with the Federal Rule except that the last sentence in the subdivision does not appear in the Federal Rule. This sentence makes it clear that Rule 42(a) applies to consolidation of actions pending before a court on appeal from a justice of the peace[.]

Marlyn E. Lugar and Lee...