                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Stephen Howell,                                                                    FILED
Defendant Below, Petitioner                                                    March 24, 2017
                                                                                RORY L. PERRY II, CLERK
vs) No. 16-0106 (Berkeley County 15-C-AP-17)                                  SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Charles Everhart,

Plaintiff Below, Respondent



                              MEMORANDUM DECISION
        Petitioner Stephen Howell, pro se, appeals two orders of the Circuit Court of Berkeley
County. In the first order, entered on October 19, 2016, the circuit court awarded judgment in a
wrongful occupation action to Respondent Charles Everhart on the ground that petitioner failed to
appear for trial on October 19, 2016. In the second order, entered November 19, 2015, the circuit
court denied petitioner’s motion to set aside its October 19, 2016, order. Respondent, by counsel
Eric S. Black, filed a summary response in support of the circuit court’s orders. Petitioner filed a
reply.

        The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner rented residential property located at 174 Orick Riner Lane, Martinsburg, West
Virginia. On August 10, 2015, respondent, the property manager, provided petitioner a notice to
terminate lease alleging that petitioner engaged in reckless driving, blocked other tenants with his
vehicle, allowed his brother to live with him as an “unauthorized tenant,” and failed to pay his
cable bill.1 The notice directed petitioner to surrender possession of the property. When petitioner

       1
        Petitioner accuses respondent of being guilty of a misdemeanor pursuant to West Virginia
Code § 30-40-22(a) on the ground that property managers are required to be licensed as real estate
brokers. However, the circuit court properly ruled at a November 18, 2015, hearing that whether
respondent is guilty of a misdemeanor is beyond the scope of the parties’ civil matter. There is no
(continued . . .)
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refused to vacate the property, respondent filed an action alleging that petitioner was in wrongful
occupation of residential rental property pursuant to West Virginia Code §§ 55-3A-1 through -3.2

        By order entered on October 14, 2015, the circuit court notified the parties that trial would
occur on October 19, 2015.3 The circuit court directed that copies of its order be sent to the parties.
Petitioner failed to appear for the October 19, 2015, trial. Accordingly, the circuit court awarded
possession of 174 Orick Riner Lane to respondent based on petitioner’s failure to appear.

         On October 20, 2015, petitioner was evicted from the property. Petitioner then filed a
motion to set aside the circuit court’s October 19, 2015, order. The circuit court held a hearing on
petitioner’s motion on November 18, 2015. At the beginning of the hearing, the circuit court
informed petitioner that the only issue being heard was whether its October 19, 2015, order should
be set aside. Nevertheless, petitioner stated that there were monetary claims against respondent
that he would like to pursue either in the instant action or a separate action that he would later file.4
The circuit court ruled that petitioner could present his monetary claims in this case despite his
failure to file a counterclaim.

        However, the circuit court further ruled that, in order to present his claims, petitioner would
have to show why he did not appear for the October 19, 2015, trial. Petitioner claimed that the
United States Postal Service did not deliver the notice of the trial until October 20, 2015. The
circuit court found that the notice was mailed on October 14, 2015, and asked petitioner if he had
any evidence that the postal service failed to timely deliver the notice. Petitioner indicated that he
had a copy of the envelope in which the notice was delivered. According to petitioner, the
postmark showed that the notice was sent to Baltimore, Maryland, for sorting before returning to
Martinsburg, West Virginia, for delivery. However, the transcript of the November 18, 2015,
hearing reflects that petitioner never tendered the copy of the envelope to the circuit court so that it
could inspect the postmark. Accordingly, by order entered on November 19, 2015, the circuit court


dispute that respondent is the agent of the property owner, who lives in North Carolina.
        2
         Respondent filed his action in the Magistrate Court of Berkeley County, which awarded
him possession of 174 Orick Riner Lane. Once petitioner appealed the magistrate court’s
September 18, 2015, judgment, that judgment was rendered a nullity because petitioner was
entitled to a trial de novo in the circuit court pursuant to Rule 18(d) of the West Virginia Rules of
Civil Procedure for Magistrate Courts and West Virginia Code § 50-5-12(b). See Syl. Pt. 2, Elkins
v. Michael, 65 W.Va. 503, 64 S.E. 619 (1909) (holding that “[a]n appeal from a [magistrate
court’s] judgment vacates and annuls the judgment”).
        3
        West Virginia Code § 55-3A-1(b) requires that wrongful occupation cases be heard within
ten days.
        4
       Petitioner alleged that respondent owed him his security deposit in the amount of $600
and a $250 pro rata share of petitioner’s October of 2015 rent payment, for a total of $850 in
monetary damages.

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found that petitioner failed to show that he had good cause for his failure to appear for the October
19, 2015, trial and denied his motion to set aside its October 19, 2015, order that awarded
possession of 174 Orick Riner Lane to respondent.

       Petitioner now appeals the circuit court’s October 19, 2015, order awarding judgment to
respondent and its November 19, 2015, order denying petitioner’s motion to set aside the October
19, 2015, order. “This Court reviews the circuit court’s final order and ultimate disposition under
an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous
standard; conclusions of law are reviewed de novo.” Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va.
178, 469 S.E.2d 114 (1996).

       On appeal, petitioner does not seek to move back to 174 Orick Riner Lane. Moreover, West
Virginia Code § 55-3A-3(g) significantly restricts a tenant’s right to reclaim possession of the
property. Therefore, with regard to the issue on which respondent filed this action, respondent
argues that the circuit court’s earlier order awarding him possession of the property should be
upheld. We agree and affirm the circuit court’s October 19, 2015, order.

         With regard to the circuit court’s November 19, 2015, order, petitioner contends that the
circuit court should have ruled on his monetary claims. However, while the circuit court ruled that
petitioner could present his claims despite the failure to file a counterclaim, the court qualified that
ruling by requiring petitioner to first show why he did not have notice of the October 19, 2015,
trial. Petitioner blamed the postal service for his failure to appear for trial. The circuit court found
that the notice of the trial was mailed on October 14, 2015, and asked petitioner if he had any
evidence that the postal service failed to timely deliver the notice. Although petitioner stated that
he had such evidence, the transcript of the November 18, 2015, hearing reflects that he never
tendered it to the circuit court to consider. Thus, we find no reason to disturb the circuit court’s
determination that petitioner failed to show that he had good cause for his failure to appear at the
October 19, 2015, trial. See State v. Guthrie, 194 W.Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9
(1995) (noting that deference is owed to trier of fact’s weighing of evidence). Given the lack of
good cause for petitioner’s non-appearance, the circuit court properly adhered to its prior ruling
and declined to consider petitioner’s monetary claims.5 Therefore, we conclude that the circuit
court did not abuse its discretion in denying petitioner’s motion to set aside judgment.

        For the foregoing reasons, we affirm both the circuit court’s October 19, 2015, order
awarding judgment to respondent and its November 19, 2015, order denying petitioner’s motion to
set aside the October 19, 2015, order.

                                                                                             Affirmed.




       5
       We note that petitioner states that, if he is unsuccessful in this appeal, he will pursue his
monetary claims by filing a separate action.

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ISSUED: March 24, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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