WV DHHR EMPLOYEES FEDERAL CU v. Tennant

• Citation: 215 W.Va. 387,599 S.E.2d 810
• Decision Date: 17 June 2004
• Docket Number: No. 31506.,31506.
• Court: Supreme Court of West Virginia
• Parties: WV DEPARTMENT OF HEALTH & HUMAN RESOURCES EMPLOYEES FEDERAL CREDIT UNION, Plaintiff Below, Appellee v. Cynthia TENNANT, Defendant Below, Appellant

599 S.E.2d 810

215 W.Va. 387

WV DEPARTMENT OF HEALTH & HUMAN RESOURCES EMPLOYEES FEDERAL CREDIT UNION, Plaintiff Below, Appellee v. Cynthia TENNANT, Defendant Below, Appellant

No. 31506.

Supreme Court of Appeals of West Virginia.

Submitted May 25, 2004.

Decided June 17, 2004.

Concurring Opinion of Justice Davis June 18, 2004.

Concurring and Dissenting Opinion of Justice Albright June 30, 2004.

Cynthia Tennant, Pro se, Fairview.

No appearance on behalf of Appellee.

PER CURIAM:

In the instant case, the appellee, the West Virginia Department of Health and Human Resources Employees Federal Credit Union ("Credit Union"), filed a complaint against the appellant, Cynthia Tennant, on August 1, 2000, in the Magistrate Court of Kanawha County, alleging that as a result of her delinquent debt, Ms. Tennant breached her agreement on a revolving MasterCard credit account. The Credit Union asserted that Ms. Tennant had an outstanding balance of $5,938.81; however, due to the limitations on the amount of relief that can be collected in magistrate court, the Credit Union requested judgment in its favor in the amount of $5,000. On January 17, 2001, Ms. Tennant filed a motion to have her case removed to circuit court. Thereafter, on December 2, 2002, a trial was held in the Circuit Court of Kanawha County. On December 5, 2002, the circuit court entered an order against Ms. Tennant and in favor of the Credit Union in the amount of $5,811.02, plus post-judgment interests and court costs. Ms. Tennant now appeals the circuit court's order. After reviewing the facts of the case, the issues presented, and the relevant statutory and case law, this Court affirms the decision of the circuit court.

I. FACTS

Cynthia Tennant, the appellant, is an employee of the West Virginia Department of Health and Human Resources ("DHHR") and lives in Fairview, West Virginia.¹ On June 2, 1997, Ms. Tennant applied for a MasterCard credit account through the appellee, the West Virginia Department of Health and Human Resources Employees Federal Credit Union ("Credit Union"). Within a few days of being approved and actually receiving her MasterCard, Ms. Tennant requested that her $1,500 credit limit be increased. On June 19, 1997, Ms. Tennant's request for an increase was approved and her credit limit was increased to $3,000. Then, on August 2, 1997, Ms. Tennant requested and was approved for an increase in her credit limit to $4,000. On September 4, 1997, Ms. Tennant applied for and received another increase to her credit limit to $5,000.

Approximately one year later, on October 30, 1998, Ms. Tennant was sent a "notice of right to cure default" by the Credit Union indicating that she was in default on her MasterCard by $1,515.50 and that she had exceeded her credit limit and had accumulated a total loan balance of $5,906.67. The letter of notice, signed by Linda Bodie, manager of the Credit Union, indicated that the last payment received from Ms. Tennant was on May 29, 1998. Ms. Bodie sent a subsequent letter to Ms. Tennant on November 2, 1998, confirming her conversation with Ms. Tennant's husband, Moses Tennant, with regard to the delinquent MasterCard account. According to the letter, Mr. Tennant stated that Ms. Tennant would immediately begin making regular monthly payments of a minimum of $125 as soon as she received the proceeds from a lawsuit that was separate from these proceedings. On April 7, 2000, another letter was sent to Ms. Tennant confirming a subsequent conversation with Mr. Tennant, who explained that on or around April 15, 2000, Ms. Tennant had again agreed to resume making minimum payments of $125.

On August 1, 2000, the Credit Union filed a complaint against Ms. Tennant in the Magistrate Court of Kanawha County, alleging that Ms. Tennant had breached her agreement on the credit card account and that as of July 31, 2000, she owed the Credit Union $5,938.81. According to the Credit Union, Ms. Tennant's last payment was received on April 24, 2000. Consequently, based upon the $5,000 jurisdictional amount limitation in magistrate court, the Credit Union requested a judgment actually lower than the amount Ms. Tennant owed, specifically, $5,000 plus court costs and interest.

In Ms. Tennant's answer, dated October 6, 2000, she denied the matters set forth in the complaint and asserted a counterclaim alleging that: the Credit Union breached the contract first by not applying payments in a timely manner causing additional interest to accrue; that her privacy rights were violated by the Credit Union discussing her account with her husband; that the Credit Union refused to provide a copy of the original contract for the credit card; and, that her rights were violated by the Credit Union asking for court costs. Ms. Tennant then demanded a jury trial, court costs, and asked for punitive damages "to deter [the Credit Union] from acting in such a ma[nn]er again."

The case was set for a hearing on January 25, 2001, in the Magistrate Court of Kanawha County. Prior to that date, on January 17, 2001, Ms. Tennant filed a motion to have her case removed to the Circuit Court of "Marion County or in [the] alternative Kanawha [County]," even though she now claims that she lives in Monongalia County. Per Ms. Tennant's request, the case was subsequently removed from the magistrate court to the Kanawha County Circuit Court. On March 29, 2001, Ms. Tennant served upon the Credit Union a "Defendant's First Request for Production of Documents to Plaintiff" and a "Defendant's First Set of Interrogatories to Plaintiff." On October 24, 2001, the Credit Union served upon Ms. Tennant the "Plaintiff's Answers to Defendant's First Set of Interrogatories" and "Plaintiff's Answers to Defendant's Request for Production of Documents."

On March 8, 2002, the circuit court held a scheduling conference outlining the specific dates of pertinent activities to occur prior to the scheduled December 2, 2002 trial; however, Ms. Tennant did not attend the scheduling conference. Moreover, the record reflects that notice of the conference was sent to Ms. Tennant on February 28, 2002, and that a copy of the scheduling order was provided to her by mail following the completion of the scheduling conference.

On November 13, 2002, Ms. Tennant filed a motion to dismiss pursuant to West Virginia Rule of Civil Procedure 12(b)(3), asserting that the case should have been filed in Monongalia County where she declares she resides.² On that same day, Ms. Tennant filed a motion for continuance for the following reasons: "Due to the fact defendant did not receive the notice of the scheduling order dated March 8, 2002. Defendant discovered that a scheduling order had been done through a phone call to Kanawha County Circuit Court on October 29, 2002 when checking the status of the case";³ due to the failure of notice she was unable to complete discovery and properly prepare for trial; and, because her husband "is having health problems at this time and will be going through testing and treatment shortly."

A week later, on November 21, 2002, Ms. Tennant filed a motion for a continuance for the pretrial conference that was scheduled for November 25, 2002, and stated as the sole basis of her request: "Defendant['s] husband is having health problems at this time." That same day, Mr. Tennant, who was not a party to this civil action, also filed a motion for a continuance of Ms. Tennant's pre-trial conference stating: "Health reasons. Note I have filed a motion to intervene in he [sic] above styled case."⁴ On November 25, 2002, during a pre-trial conference, the circuit court denied Mr. Tennant's motion to intervene and Ms. Tennant's motion for a continuance. Thereafter, on November 29, 2002, Ms. Tennant filed a "motion for stay."⁵ Nonetheless, pursuant to the March 8, 2002 scheduling order, the case proceeded to trial on December 2, 2002. Upon hearing testimony from Ms. Tennant and the Credit Union's manager, Ms. Bodie, as well as receiving various exhibits offered by both parties, the circuit court entered its December 5, 2002 order against Ms. Tennant and in favor of the Credit Union in the amount of $5,811.02, plus post-judgment interests and court costs. This appeal followed.⁶

II. STANDARD OF REVIEW

The standard of review concerning appeals to this Court from non-jury trials, or bench trials, is set forth in Syllabus Point 1 of Public Citizen, Inc. v. First National Bank, 198 W.Va. 329, 480 S.E.2d 538 (1996):

In reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court's underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a de novo review.

With these standards in mind, we now consider whether the circuit court erred in this case.

III. DISCUSSION

We begin our review in this appeal with Ms. Tennant's contention that the circuit court violated her rights by not providing her a jury trial on December 2, 2002 in the Circuit Court of Kanawha County. Ms. Tennant believes that since she requested a jury trial while her case was pending in the Magistrate Court of Kanawha County on October 6, 2000,⁷ she should have been given a jury trial in the circuit court on December 2, 2002, after the case was removed to that court upon her request. Thus, we are left to decide whether a request in magistrate court for a jury trial will automatically satisfy the requirements of Rule 38 of the West Virginia Rules of Civil Procedure⁸ after a case has been removed to the circuit court.

In the Syllabus of Barker v. Benefit Trust Life Insurance Company, 174 W.Va. 187, 324 S.E.2d 148 (1984), in part, we held that "[w]here a trial by jury has been secured by a party to litigation under W.Va.R.Civ.P. 38 or 39(b), a party to such...