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.
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.
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. The notice
directed petitioner to surrender possession of the property.
When petitioner 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.
order entered on October 14, 2015, the circuit court notified
the parties that trial would occur on October 19,
2015. 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.
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.The circuit court ruled that petitioner
could present his monetary claims in this case despite his
failure to file a counterclaim.
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 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.
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).
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.
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. Therefore, we conclude that the circuit
court did not abuse its discretion in denying
petitioner's motion to set aside judgment.
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.
CONCURRED IN BY: Chief Justice Allen H. Loughry II, Justice
Robin Jean Davis, Justice Margaret L. Workman, Justice Menis