State ex rel. West Virginia Truck Stops, Inc. v. McHugh

• Decision Date: 05 April 1977
• Docket Number: No. 13770,13770
• Citation: 233 S.E.2d 729,160 W.Va. 294
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. WEST VIRGINIA TRUCK STOPS, INC., a corporation v. T. McHUGH, Judge, etc., et al.

Page 729

233 S.E.2d 729

160 W.Va. 294

STATE ex rel. WEST VIRGINIA TRUCK STOPS, INC., a corporation v. T. McHUGH, Judge, etc., et al.

No. 13770.

Supreme Court of Appeals of West Virginia.

April 5, 1977.

Syllabus by the Court

1. One who files a counterclaim in response to an action to enforce a mechanic's lien is entitled, under W.Va.Const, Article III, § 13, to a jury trial on the counterclaim where the value in controversy exceeds twenty dollars.

2. A trial court exceeds its legitimate powers when it denies a jury trial to one entitled thereto who makes a proper demand therefor.

3. "When a trial by jury has been demanded in an action involving more than twenty dollars, the impaneling of a jury to try the issue is a jurisdictional requirement, and a judgment rendered without complying with it is void." Point 2, Syllabus, Matheny v. Greider, 115 W.Va. 763, 177 S.E. 769 (1934).

4. Where it appears that the court in which a suit or action has been instituted has no jurisdiction to enter any decree or judgment therein, or having such jurisdiction, exceeds its legitimate powers, a writ of prohibition against further proceedings therein will issue, regardless of the existence of other remedies available to the party whose interests are affected thereby.

Lewis, Ciccarello, Masinter & Friedberg, Martin J. Glasser, Charleston, for relator.

Kay, Casto & Chaney, Michael T. Chaney and John S. Haight, Charleston, for respondents.

CAPLAN, Chief Justice:

In this proceeding in prohibition the relator, West Virginia Truck Stops, Inc., invokes the original jurisdiction of this Court, seeking to prohibit the respondents, Thomas McHugh, Judge of the Circuit Court of Kanawha County and others, from proceeding with the prosecution of an action instituted in that court by respondent Paul E. Grimm, d/b/a Grimm Construction Company, against the relator. When the trial court overruled Truck Stops' motion to discontinue the trial before a commissioner and to afford it a jury trial, Truck Stops instituted this proceeding in prohibition.

The controversy which resulted in this proceeding arose from a contract dated February 23, 1972, entered into between the relator, Truck Stops, and Paul E. Grimm, one of the respondents herein. Under the terms of that contract Grimm, a general contractor, agreed to construct for the relator a truck stop facility on certain property in Kanawha County, which the latter had leased. The contract specified what work was to be done, that it was to be performed in three separate phases and provided the cost of the construction to Truck Stops would not exceed $200,000.00. The relator has paid Grimm $209,000.00 but Grimm refused to complete the job until an additional sum of $121,000.00 was paid by Truck Stops for additional work allegedly done.

On December 29, 1972, as a result of the refusal of Truck Stops to pay the additional sum, Grimm filed a mechanic's lien against the subject property. The action alluded to above was instituted by Grimm against the relator on February 13, 1973. In his complaint Grimm demanded judgment against Truck Stops in the sum of.$121,638.95; enforcement of his mechanic's lien; and sale of the real property with the improvements thereon in satisfaction of various liens.

Truck Stops, on March 20, 1973, filed an answer to Grimm's complaint and also filed a counterclaim demanding judgment against Grimm in a substantial sum. In said answer and counterclaim Truck Stops demanded a trial by jury. As reflected by an order of the Circuit Court of Kanawha County, dated April 26, 1974, Truck Stops moved "that the issues of the existence and terms of the contract between the parties and other factual issues be submitted to a jury for determination." This motion was overruled and counsel for the defendant, Truck Stops, noted his objection and exception. Thereupon the trial court referred this matter to a commissioner for the purpose of taking evidence and reporting back to the court.

The hearings before the commissioner began on August 5, 1974 and continued from time to time until July 19, 1976, when the plaintiff rested. It is alleged in the answer of Grimm in this proceeding that after he rested on July 19, 1976, counsel for the relator requested of the commissioner that it be granted a continuance to allow it additional time in which to prepare its defense. The answer also asserts that Truck Stops did not at that time claim a right to a jury trial.

On July 27, 1976 the relator filed a motion in the Circuit Court of Kanawha County seeking dismissal of the action on the ground that it was being unconstitutionally denied a trial by jury. Alternatively, that motion sought to suspend further proceedings before the commissioner until it be determined by a jury trial whether Truck Stops "owes monies to any of the other parties to this proceeding."

After the issues raised in the relator's motion to dismiss were briefed and argued before the court, by an order dated September 23, 1976 and entered by John N. Charnock, Jr., Special Judge, the motion was overruled. After noting in the order that Judge Taylor, trial judge at the commencement of the proceeding, had denied a motion for a jury trial on April 26, 1974, the order proceeded as follows: "to now grant the defendant's motion would destroy the regularity and continuity of the proceedings and . . . to require these claimants to go to the additional time and expense of starting over again would result in a greater injustice than might result from denying the said motion." This proceeding in prohibition followed.

It is the position of the relator that it is entitled to a jury trial in the action below and particularly with regard to its counterclaim. For example, says the relator, the contract calls for the construction to be performed in three phases; yet, phases two and three have not been performed at all by Grimm. Further, it asserts, no plans and specifications were produced by the contractor, making it impossible to tell from the face of the contract precisely what Grimm was suppose to do for Truck Stops. Also, it is undisputed that Truck Stops has paid the $200,000.00 guaranteed cost under the contract to Grimm.

The counterclaim, says the relator, charges Grimm with a breach of contract, reflecting factual issues which give a right to trial by jury under Article III, Section 13 of the West Virginia Constitution. It is further asserted by the relator that it was compulsory under the provisions of Rule 13, R.C.P., for it to have filed its counterclaim when it filed its answer. In addition, the relator says that although a mechanic's lien suit is statutory and that it may not, therefore, be entitled to the common law right to a jury trial by reason of it being basically a proceeding in equity, the R.C.P. have merged law and equity and a trial by jury is required on demand. Finally, the relator asserts that if the mechanic's lien statute is construed to deprive the relator in the action below of a jury trial then such statute is unconstitutional; the procedural remedy mechanic's lien must yield to a constitutional right.

The respondents resist the granting of the writ of prohibition on the following grounds: (1) A mechanic's lien suit is historically an equitable proceeding and therefore no right to trial by jury exists; (2) The relator proceeded before the commissioner without objections and without again requesting a jury trial; (3) Petitioner having delayed institution of a proceeding in prohibition for approximately two and one-half years after the court denied an order requesting a jury trial is barred by waiver, estoppel and/or laches; and (4) The denial by the trial court of a jury trial was an appealable order.

In view of the matters raised in the relator's counterclaim and by reason of the provision of Article III, Section 13 of the West Virginia Constitution mandating that "the right of trial by jury, if required by either party, shall be preserved", the respondents do not seriously contend that the relator was not entitled to a jury trial on its counterclaim. They do contend, however, that by reason of the relator's delay in instituting an action requiring the court to afford it a jury trial, such action cannot now be maintained.

The trial court's ruling, in effect, acknowledged such right to a jury trial but said to permit one now would disrupt the proceedings and "result in a greater injustice than might result from denying the said motion." The only real issue is whether, as alleged by the respondents, the relator's failure to timely institute its action in prohibition, upon the denial of its motion (for a jury trial) on April 26, 1974, defeats its right to prohibition now.

In resolving the question presented here it is necessary to consider the circumstances in which such question arose. It is the tenor of the respondent's argument that the delay of which they now complain was attributable to the relator alone and that it should therefore be denied its requested relief. When the relator's motion for a jury trial was denied on April 26, 1974, the relator did all it could to protect itself at that time. It argued its position before the court and when it did not prevail it noted its objection and exception to the court's ruling.

Upon referral of the...