State ex rel. Ware v. Henning, 30471.

CourtSupreme Court of West Virginia
Citation212 W.Va. 189,569 S.E.2d 436
Docket NumberNo. 30471.,30471.
PartiesSTATE of West Virginia ex rel. Roger L. WARE, Petitioner, v. Honorable John L. HENNING, Jr., Judge of the Circuit Court of Randolph County, Randall L. Murphy, Mark Eaton, Dorothy Davenport, Wilton E. Williams, Jr., Trustees of Mountain View Conference, Seventh Day Adventist Church, a Religious Organization, and Don Jacko, Respondents.
Decision Date17 June 2002

David A. Sims, Esq., Gregory R. Tingler, Esq., Law Offices of David A. Sims, Elkins, for Petitioner.

Stephen G. Jory, Esq., Jory & Smith, Elkins, for Respondents Murphy, et al.


The relator in this original proceeding in prohibition, Roger L. Ware, entered into a contract to sell the Elkins Seventh Day Adventist Church a parcel of land and an abutting right-of-way. Subsequently the relator, who was having difficulty complying with certain provisions of the contract, and who believed that the contract was void because it had not been executed by a party having authority under the law to act for a religious group, refused to convey the property. Representatives of the church then instituted a specific performance proceeding in the Circuit Court of Randolph County to compel the relator to make the conveyance. They also prayed that the court enjoin the relator from committing certain acts which, they claimed, would render the right-of-way unusable. Ultimately, the circuit court granted the church representatives the relief which they sought.

In the present original prohibition proceeding, the relator claims that the church representatives were not entitled to the specific performance or the injunction which they sought because the contract was void, and he further claims that the circuit court exceeded its legitimate right in granting the church representatives the relief which they sought.


The relator owns two adjoining tracts of land located in Randolph County, West Virginia. The first tract, a five acre tract, borders U.S. Route 250, south of the town of Beverly. The second tract is located directly behind the five acre tract and consists of 26.5 acres.1 The 26.5 acre tract does not border Route 250 South.

The relator listed the 26.5 acre tract with Johnson Realty, a local real estate firm, for sale. Upon learning that the tract was being offered for sale, Don Jacko, the pastor of the Elkins Seventh Day Adventist Church, approached the realtor and, on May 22, 2001, signed a contract whereby the church allegedly undertook to purchase the tract. The purchaser was identified as the "Seventh Day Adventist Church." At the time, Mr. Jacko, although the pastor of the church, was not a trustee of the church. He signed the contract simply as "Don W. Jacko." Attached to the contract was a statement of contingencies which required, among other things, that a 40 foot right-of-way be deeded in conjunction with the property. It appears that the 40 foot right-of-way was intended to pass between Route 250 and the 26.5 acre tract over the five acre tract owned by the relator. The contingency specifically stated: "40' deeded right-of-way, with minimum of 30' wide gravel road not to exceed 10 percent grade to the edge of the buyer's property by closing date." The contract provided that the purchase price would be $145,000. The contract initially provided that closing was to take place within 90 days of the signing of the contract. At a later date, by agreement of the parties, the closing date was extended to October 10, 2001.

For reasons which are not wholly clear, the transaction did not close on October 10, 2001, and on October 22, 2001, parties who identified themselves as the trustees of the Mountain View Conference, Seventh Day Adventist Church, a religious organization, and Don Jacko, instituted an action against the relator in the Circuit Court of Randolph County for specific performance of the contract to purchase the 26.5 acre tract. In their complaint, the trustees alleged that they were trustees duly appointed by the Mountain View Conference, Seventh Day Adventist Church, and pursuant to W. Va.Code 35-1-1 et seq., and were empowered to hold title to real estate used for religious purposes. The plaintiff, Don Jacko, alleged that he was the agent of, and acting in behalf of, the trustees in executing the contract with the relator for the purchase of the real estate.

In the complaint, the plaintiffs further stated that the relator had advised them by letter dated October 10, 2001, that he was refusing to sell the real estate according to the signed agreement of the parties. They asserted that they had fulfilled all of the terms of the offer and acceptance required on their part, and that they were entitled to specific performance. They, therefore, prayed that the court grant them specific performance and order the relator to perform his obligations.

Additionally, the plaintiffs alleged that the relator was engaged in the process of excavating the 5.05 acre tract adjacent to the parcel which they wished to purchase in such a manner that in the future it would be impossible for him to convey a right-of-way, as had been specified in the contingencies attached to the contract, and that the excavation would render the tract which they sought to purchase unsuitable for the purposes envisioned. They, therefore, prayed that the court grant them injunctive relief to prevent further excavation until such time as the court had rendered a decision on the specific performance issue.

On the day the complaint was filed, the Circuit Court of Randolph County, without giving notice to the relator, entered a temporary restraining order based upon the allegations contained in the complaint. The court also scheduled the matter for a hearing on October 26, 2001.

On October 26, 2001, the relator filed a motion to dissolve the restraining order, and claimed that there was no valid contract for the sale of the land since the plaintiffs lacked capacity to enter into such a contract. Essentially, he took the position that Don Jacko, the pastor of the church who had signed the contract, was not a trustee of the church and that under the law, he did not have power or authority to enter into a real estate transaction in behalf of the church. He also took the position that the trustees/plaintiffs, who were parties plaintiff in the specific performance proceeding, had not properly qualified as trustees under the law and that they, as a consequence, had no power to maintain the action.

Additionally, in a motion to dismiss made on October 28, 2001, the relator claimed that the temporary restraining order issued in the case had expired, that no permanent injunction had issued, that the temporary restraining order was in itself improper in that no notice had been given to him, and that the issuance of the order had violated the requirement of Rule 65 of the West Virginia Rules of Civil Procedure. He asserted that there was no legal basis for the issuance of the restraining order since there was no contract between parties empowered to enter into such contract and since there had been a failure of consideration relating to the contract.

Following the filing of the relator's motions, the "trustee" plaintiffs who had not previously filed their order of appointment, as required by W. Va.Code 35-1-6, filed their appointment order in Randolph County, as required by the Code section, on October 29, 2001.2 Then, on November 8, 2001, they filed a response to the motion to dismiss the complaint and restraining order. On the same day, the court conducted a hearing on the motion to dismiss. During the hearing, the court concluded that the relator was in contempt of court.

Shortly thereafter, the trustees of the church and Don Jacko filed a motion for summary judgment and requested that the court enter an order requiring specific performance of the contract. Subsequently, on February 5, 2002, the circuit court granted the motion for summary judgment. The relator did not comply with the court's summary judgment order, and on March 6, 2002, the court appointed a special commissioner to transfer the real estate.

In the present proceeding, the relator prays that this Court issue a writ of prohibition to prohibit the circuit court from proceeding further in this matter.


Traditionally, the issuance of a writ of prohibition has been deemed proper where a trial court does not have jurisdiction to entertain a matter before it, or having jurisdiction, exceeds its legitimate powers. State ex rel. United Mine Workers of America, Local Union 1938 v. Waters, 200 W.Va. 289, 489 S.E.2d 266 (1997).

In Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), this Court stated:

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.

The Court...

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