FILED
May 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
Joseph E. Hunter,
Petitioner Below, Petitioner
vs.) No. 21-0617 (Kanawha County 21-C-AP-86)
Josh Burdette,
Respondent Below, Respondent
MEMORANDUM DECISION
Self-represented petitioner Joseph E. Hunter appeals the July 13, 2021, order of the Circuit
Court of Kanawha County denying his appeal from the June 9, 2021, order of the Magistrate Court
of Kanawha County due to petitioner’s failure to file the appeal within twenty days of the entry of
the order as required by Rule 18 of the West Virginia Rules of Civil Procedure for Magistrate
Courts. In its June 9, 2021, order, the magistrate court dismissed petitioner’s civil property dispute
due to its lack of jurisdiction over such disputes. Self-represented respondent Josh Burdette filed
a response in support of the circuit court’s order. 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.
Based upon a plat of petitioner’s real property prepared by licensed professional surveyor
Randy Brooks Crace, petitioner claims a right to the property known as 535/537 Valley Grove
Road in Kanawha County (“the property”). Respondent disputes petitioner’s claim. In 2021,
petitioner filed an unlawful detainer action in the Magistrate Court of Kanawha County seeking to
oust respondent from possession of the property after respondent received the property from
respondent’s predecessor(s)-in-interest. 1 In his complaint, petitioner alleged that he filed his
1
Petitioner’s complaint stated that Deborah and Larry McCormick sold the property. The
record is unclear as to whether the McCormicks sold the property to respondent or his brother,
(continued . . .)
1
action against respondent because “I have [a] claim” to the property. Respondent, in his answer to
the complaint, alleged that the plat prepared by Mr. Crace supported his claim to the property. By
order entered on June 9, 2021, the magistrate court dismissed petitioner’s action, finding that it did
not have jurisdiction over the parties’ property dispute.
Petitioner filed his appeal from the magistrate court’s June 9, 2021, order in the Circuit
Court of Kanawha County on July 9, 2021, outside the twenty-day appeal limitation provided by
Rule 18 of the West Virginia Rules of Civil Procedure for Magistrate Courts. Pursuant to Rule 18,
(a) Any party to a final judgment may as a matter of right appeal to circuit court.
Notice of appeal shall be filed in magistrate court:
(1) Within 20 days after judgment is entered; . . . .
....
(c) If no notice is filed within the 20-day period, the circuit court may, not later than
90 days after the date of judgment, grant an appeal upon a showing of good cause
why the notice was not filed within such 20-day period.
In its July 13, 2021, order denying petitioner’s appeal, the circuit court ruled:
Here, [petitioner] filed the [p]etition for [l]ate [a]ppeal 30 days after the [c]ivil
[j]udgment [o]rder. The [p]etition for [l]ate [a]ppeal makes no attempt to offer good
cause for why [petitioner] did not file the appeal within 20 days. Instead,
[petitioner] uses the [p]etition only to argue the merits his [m]agistrate [c]ourt
action. Accordingly, the [c]ourt FINDS that [petitioner] has failed to demonstrate
good cause regarding this untimely appeal.
Petitioner now appeals the circuit court’s July 13, 2021, order denying his appeal from the
magistrate court’s June 9, 2021, dismissal of his action for a lack of jurisdiction. “This Court may,
on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on
any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by
the lower court as the basis for its judgment.” Syl. Pt. 4, White v. Haines, 215 W. Va. 698, 601
S.E.2d 18 (2004) (quoting Syl. Pt. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965)).
On appeal, the parties address the merits of their property dispute. Petitioner further argues
that he had good cause for not filing his appeal from the magistrate court’s order within the twenty-
day appeal time provided by Rule 18 because (1) while the magistrate court entered its order on
June 9, 2021, a copy of the order did not arrive at petitioner’s residence until June 25, 2021; and
(2) when the copy of the order arrived, petitioner was outside West Virginia caring for dying
Brian Burdette. However, respondent states that petitioner’s action was meant to “declare the rights
and interest of the parties concerning the Respondents’ property at 535/537 Valley Grove Road.”
(Typographical error not corrected.).
2
relatives.
We find that, regardless of whether there was good cause for petitioner’s non-compliance
with Rule 18, we may affirm the circuit court’s denial of petitioner’s appeal due to the magistrate
court’s lack of jurisdiction of the parties’ property dispute. “Magistrate court[s] shall have
jurisdiction of matters involving unlawful entry or detainer of real estate so long as the title to such
real estate is not in dispute.” State ex rel. Strickland v. Daniels, 173 W. Va. 576, 581, 318 S.E.2d
627, 632 (1984) (quoting W. Va. Code § 50-2-1) (Emphasis added.); Dishman v. Jarrell, 165 W.
Va. 709, 711, 271 S.E.2d 348, 350 (1980) (same). West Virginia Code § 50-2-1 further provides,
in pertinent part, that “[m]agistrate courts do not have jurisdiction of actions . . . of matters in
which the title to real estate is in issue.”
“Whenever it is determined that a court has no jurisdiction to entertain the subject matter
of a civil action, the forum court must take no further action in the case other than to dismiss it
from the docket.” Syl. Pt. 1, Hinkle v. Bauer Lumber & Home Bldg. Ctr., Inc., 158 W.Va. 492,
211 S.E.2d 705 (1975). Moreover, because the circuit court’s appellate jurisdiction is derivative,
it may not entertain appeals from cases in which the magistrate court lacked jurisdiction. Cordell
v. Jarrett, 171 W. Va. 596, 600, 301 S.E.2d 227, 232 (1982) (citing Syl. Pt. 3, State ex rel. Honaker
v. Black, 91 W. Va. 251, 112 S.E. 497 (1922)) (Footnote omitted.).
Here, the parties dispute ownership of the property, and petitioner argues that he owns the
property based upon deeds in his chain of title. However, as we have explained, unlawful detainer
actions, of which the magistrate court has jurisdiction, involve only the right of possession to real
estate and do not determine the “ultimate question of title.” Ratino v. Hart, 188 W. Va. 408, 412
n.8, 424 S.E.2d 753, 757 n.8 (1992) (quoting Black’s Law Dictionary 1536 (6th ed. 1990)); W.
Va. Code § 50-2-1. Therefore, we affirm the circuit court’s denial of petitioner’s appeal pursuant
to West Virginia Code § 50-2-1 due to the magistrate court’s lack of jurisdiction of the parties’
property dispute.
For the foregoing reasons, we affirm the circuit court’s July 13, 2021, order denying
petitioner’s appeal from the magistrate court’s June 9, 2021, order dismissing petitioner’s action
due to a lack of jurisdiction.
Affirmed.
ISSUED: May 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
3