Straley v. Gassaway Motor Company, Inc.

• Decision Date: 06 June 1973
• Docket Number: Civ. A. No. 73-53.
• Citation: 359 F. Supp. 902
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Margaret STRALEY, Plaintiff, v. GASSAWAY MOTOR COMPANY, INC., a corporation, Individually and in its official capacity, Defendant.

359 F. Supp. 902

Margaret STRALEY, Plaintiff, v. GASSAWAY MOTOR COMPANY, INC., a corporation, Individually and in its official capacity, Defendant.

Civ. A. No. 73-53.

United States District Court, S. D. West Virginia, Charleston Division.

June 6, 1973.

George R. Higinbotham, Charleston, W. Va., for plaintiff.

William M. Kidd, Sutton, W. Va., for defendant.

MEMORANDUM ORDER

KENNETH K. HALL, District Judge.

In her complaint in this action, plaintiff, Margaret Straley, alleges that the defendant, Gassaway Motor Company, Inc., through its garage, estimated transmission repair costs on her 1965 Ford Falcon automobile would be between $60 and $70, but that, upon making the repairs without further contacting her, the charges total $230.11, greatly more than the vehicle, valued at approximately $150.00, is worth. Defendant claims a repairman's lien, refuses to surrender possession of the automobile until the charges are paid, and threatens to advertise and sell the vehicle pursuant to provisions of West Virginia Code, §§ 38-11-3 and 38-11-14. Plaintiff endeavored to regain possession of the automobile through Justice of the Peace proceedings, but was advised that she would be required to provide bond in an amount double the charges and would be obliged to employ an attorney because of community factors involved.

Jurisdiction in this Court is based on 28 U.S.C. § 1343. Plaintiff seeks declaratory and injunctive relief under 28 U. S.C. §§ 2201-2202, and 42 U.S.C. § 1983 and 1988. Upon her affidavit pursuant to provisions of 28 U.S.C. § 1915, plaintiff was allowed to proceed in this action in forma pauperis.

Plaintiff claims that the West Virginia statutes, Code, §§ 38-11-3 and 38-11-14, allowing defendant to retain possession of and to advertise and sell her automobile in satisfying the repairman's lien for repair charges, is in violation of the due process provisions of the Fourteenth Amendment to the United States Constitution. She asks that the state statutes be declared unconstitutional and that defendant be enjoined from withholding her automobile from her and from advertising and selling the vehicle to satisfy the repair charge obligation. She asks that the Court require defendant to return the automobile to her and that she be awarded costs and counsel fees in this action.

Defendant's motion to dismiss the action was denied. Defendant's answer asserts that the complaint fails to state a cause of action and that no substantial federal question is here involved.

At hearings before the Court, understandings were reached between the parties that defendant would take no action to dispose of the automobile during proceedings in this cause and that plaintiff's request for a temporary restraining order would not be pressed. At the hearing on April 20, 1973, the parties agreed to submit the action to the Court for decision on the record. Later plaintiff filed a motion for summary judgment, supported by three affidavits and a memorandum of law and argument. Defendant has not responded thereto. Rule 56(e). Rule 56(c) provides that summary judgment shall be rendered forthwith if the record shows "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The burden is upon plaintiff to sustain her motion. Wright, Law of Federal Courts, § 99 (1970).

The West Virginia improver's or repairman's lien laws, like the state's landlord distress laws, are of ancient origin. The words "automobile" and "motor vehicle" are not mentioned in the statutes here challenged, but, in practice and application, a person who repairs an automobile for charges "may retain possession thereof until such charges are paid." W.Va.Code, § 38-11-3.¹ The West Virginia Supreme Court of Appeals, over fifty years ago, referred to the repairman's lien as a common-law lien. Stallard v. Stepp, 91 W.Va. 60, 112 S.E. 184 (1922). No decision of the state's highest court is found applying the improver's lien enforcement statute in an automobile repairman's lien enforcement proceedings. W.Va.Code, § 38-11-14.² The statute provides that any "person holding personal property in his possession under a lien" may, unless the lien is satisfied by arrangements between the parties, give written notice to the property owner and any others having interests therein that, unless the lien charges are paid, the property will be advertised and sold at auction to satisfy the lien. The property owner may pay the lien charges and costs and redeem the property. In this case plaintiff asserts that the lien charges are excessive—greatly more than the value of the automobile—and that neither she nor her husband is financially able to pay the charges. Plaintiff states she "sought to institute legal action to regain possession of said vehicle in a justice of the peace court in Braxton County, but was informed that a bond double the amount of the cost of repairs would be required." W. Va.Code, § 55-6-1. Further, she alleges that defendant "remains in possession of plaintiff's property and refuses to return said automobile until the full amount, unilaterally imposed, is tendered, or threatens to sell plaintiff's automobile to satisfy the unsubstantiated claim." She asserts that defendant's "retention of plaintiff's property, and the right of sale thereof, under color of law, without prior notice and hearing, denies plaintiff due process and equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution."

In State ex rel. Payne v. Walden, 190 S.E.2d 770 (W.Va.1972), and in Shaffer v. Holbrook, 346 F.Supp. 762 (D.C.S.D. W.Va.1972), the West Virginia landlord summary distress procedure was invalidated as violative of the due process provisions of the Fourteenth Amendment of the United States Constitution. In those cases the West Virginia Supreme Court of Appeals and the Federal District Court of Three Judges reviewed the history of the distress procedures and recognized the evolution thereof. Both Courts reviewed the recent United States Supreme Court rulings in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). The Sniadach case invalidated a Wisconsin wage garnishment statute on the ground that a prejudgment sequestration of wages effected without notice or a prior hearing violated the fundamental principles of due process. The Fuentes case invalidated Florida and Pennsylvania laws authorizing summary seizure of property under writs of replevin. In Shaffer v. Holbrook, supra, at pages 765-766, of 346 F.Supp., the District Court of Three Judges held:

It requires only a short step if, indeed, a step at all, to find the West Virginia distress statute violative of procedural due process under the principles of Sniadach and Fuentes. As pointed out by Mr. Justice Stewart, the procedures under attack in Fuentes were offspring of the distress remedy under common law, the forerunner of the West Virginia statute. Indeed, an individual is afforded less protection under the West Virginia statute than those condemned by the Court in Fuentes. Both Florida and Pennsylvania required the initiating party to post a bond prior to seizure, while in West Virginia the landlord may proceed solely on the basis of an affidavit. The presence of the justice of the peace in the West Virginia procedural pattern is a distinction without a difference. When issuing the distress warrant, the justice of the peace is performing a nonjudicial act similar to the Pennsylvania prothonotary, and his magisterial imprimatur on the warrant does nothing to ameliorate the unconstitutional seizure of the property. The complete absence of an opportunity to be heard prior to seizure deprives the West Virginia tenant of his property without due process of law as required by the Fourteenth Amendment, and any post-seizure remedies available to an aggrieved tenant can in no way be a substitute for a prior meaningful hearing. We conclude, therefore, that Chapter 37, Article 6, Section 12 of the West Virginia Code is constitutionally infirm

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