Nicole Booker v. Woodside, a Linden Community

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

NICOLE BOOKER,
Defendant Below, Petitioner

v.) No. 24-ICA-280 (Cir. Ct. Berkeley Cnty. Case No. CC-02-2024-C-AP-11)

WOODSIDE a Linden Community, FILED
Plaintiff Below, Respondent April 29, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION

Petitioner Nicole Booker appeals the June 5, 2024, order from the Circuit Court of
Berkeley County which denied her magistrate court appeal and awarded judgment and
costs to respondent Woodside. Woodside filed a summary response in support of the circuit
court’s order.1 Ms. Booker filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this 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.

By way of background, Ms. Booker is a single mother participating in the Section
8 Housing Choice Voucher program (“Section 8”). On August 31, 2023, Ms. Booker
entered into a lease agreement (“Lease”) for a rental unit at Woodside, a residential housing
community. Ms. Booker listed herself and four of her minor children as household
members of the apartment. According to the Lease, they were to be the apartment’s only
occupants. Among its terms and conditions, the Lease included the following relevant
language:

LIMITATIONS ON CONDUCT. The apartment and other areas reserved for
your private use must be kept clean and free of trash, garbage, and other
debris. Trash must be disposed of at least weekly in appropriate receptacles
in accordance with local ordinances. Passageways may be used only for entry
or exit. You agree to keep all passageways and common areas free of
obstructions such as trash, storage items, and all forms of personal property[.]

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Ms. Booker is represented by Carolyn J. Beyer, Esq., and Amanda K. Gavin, Esq.
Woodside is represented by Liana L. Stinson, Esq.

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PROHIBITED CONDUCT. You, your occupants or guests, or the guests of
any occupants, may not engage in the following activities: behaving in a loud
or obnoxious manner; disturbing or threatening the rights, comfort, health,
safety, or convenience of others (including our agents and employees) in or
near the apartment community[.]

The Lease also required Ms. Booker to give notice before vacating the apartment.
Further, it set forth Woodside’s legal remedies in the event of default, which included its
right to recover attorney’s fees and litigation costs, stating that “[u]nless a party is seeking
exemplary, punitive, sentimental or personal-injury damages, the prevailing party may
recover from the non-prevailing party attorney’s fees and all other litigation costs.”

Additionally, as a Section 8 tenant, Ms. Booker was also required to enter into a
lease contract addendum (“Addendum”) which was incorporated into her Lease. As part of
its terms, the Addendum states:

Owner shall have the right to terminate the lease or right of occupancy of any
Section 8 . . . resident for serious or repeated violation of material terms of
the lease or any material non-compliance or other good cause . . . pursuant to
24 C.F.R. [§] 966.4. A serious or material violation or breach of the Lease
Contract and this addendum includes, but is not limited to, failure to make
rent payments under the lease; failure to fulfill household obligations as
described in 24 C.F.R. [§] 966.4(f).

Included within the household obligations are the requirements that a Section 8 tenant
must: “keep the dwelling unit and such other areas as may be assigned to the tenant for the
tenant's exclusive use in a clean and safe condition”; “dispose of all ashes, garbage, rubbish,
and other waste from the dwelling unit in a sanitary and safe manner”; and “act, and cause
household members or guests to act, in a manner which will not disturb other residents’
peaceful enjoyment of their accommodations and will be conducive to maintaining the
project in a decent, safe and sanitary condition[.]” 24 C. F. R. § 966.4(f)(6)-(7), (11) (2023).

The Addendum also contains a prohibition against unauthorized occupants. This
provision further states: “Failure to comply with this provision is a substantial and material
violation of this addendum and the Lease contract, and you may be evicted or relocated for
material non-compliance.”

Ms. Booker moved into her apartment on September 1, 2023. Shortly thereafter,
Woodside hired a new property manager, Mr. Hamlette. According to Ms. Booker, Mr.
Hamlette routinely cited her for what she described as “trivial and petty infractions” of the
Lease and Addendum. According to the record, Mr. Hamlette cited Ms. Booker on
November 15, 2023, for a noise complaint at her residence involving screaming, cussing,
banging, and slamming doors; November 21, 2023, for having trash and cigarette butts on

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her apartment’s porches; December 26, 2023, after one of Ms. Booker’s children threatened
and cursed another resident; February 26, 2024, for a car seat, trash bag, metal bucket,
boxes, and a two-ton car jack on the back porch; March 5, 2024, after one of her children
engaged in a physical altercation at the apartment complex with another child; March 7,
2024, for a booster seat and trash bag on the back porch; April 5, 2024, and April 8, 2024,
for a car jack, gas can, and bucket on the front porch; April 17, 2024, for a car seat and
miscellaneous items on the front porch; and April 18, 2024, for miscellaneous items on the
front porch. Although specific dates are not in the record, Ms. Booker was also cited for
permitting unauthorized persons to occupy her apartment. These individuals were her adult
son and the father of her children. While Ms. Booker contests the length of time Woodside
claims either individual stayed at her apartment, she does not dispute that these individuals
were not listed on the Lease or Addendum and were not previously approved by
Woodside’s management.

On February 20, 2024, Woodside provided Ms. Booker with notice to either cure
her lease violations within twenty-one days or vacate the apartment within thirty days
(“21/30 Notice”). The 21/30 Notice referenced Ms. Booker’s earlier citations related to
such things as trash, noise complaints, unauthorized occupants, as well as the behaviors of
her children.2 In circuit court, Ms. Booker testified that she did not receive the notice
because after receiving several violations she stopped looking at them and instructed her
children to put them in a drawer.

Thereafter, Woodside filed its petition for wrongful occupation on March 7, 2024,
in magistrate court, alleging that Ms. Booker had violated terms of the Lease and
Addendum. Woodside sought an order directing Ms. Booker to vacate the property and
awarding it possession. See W. Va. Code § 55-3A-1 (1983). Ms. Booker did not file an
answer and was self-represented during the magistrate court bench trial, which was held
on March 26, 2024. The magistrate court awarded Woodside possession of the premises
and court costs of $76.68, and directed Ms. Booker to vacate the premises by April 8, 2024.
Ms. Woodside appealed this ruling to circuit court and the matter was set for a de novo
bench trial on June 4, 2024. In the interim, Ms. Booker vacated the premises without
providing notice to Woodside as required by the Lease.

At the outset of trial, the parties raised no preliminary issues and informed the circuit
court that they were prepared to try the case on its merits. Thereafter, Mr. Hamlette testified
as to Ms. Booker’s violations of the Lease and Addendum as identified in the citations
issued to her between November of 2023 and April of 2024. In her case in chief, Ms.

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The record further illustrates that Ms. Booker was cited for having unauthorized
items hanging from her apartment’s windows. This violation was included along with Ms.
Booker’s other violations in the 21/30 Notice, and there was testimony regarding this
violation in circuit court. The circuit court’s order does not address this alleged violation
which consequently plays no part in our decision.
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Booker testified that she had minimal control over the actions of her children or their
behaviors, and that her children’s actions were in retaliation for treatment they received
from others. She also attempted to testify as to Woodside’s alleged violations of the West
Virginia Fair Housing Act (“Housing Act”) as a defense and counterclaim to the underlying
petition. On this issue, Ms. Booker maintained that Mr. Hamlette exhibited a perceived
bias against her because of her status as a single mother, and unfairly targeted her through
multiple citations for trivial violations. However, the circuit court sustained Woodside’s
objection, finding that Ms. Booker had not filed any pleading placing the Housing Act at
issue. After the circuit court’s ruling, Ms. Booker’s counsel did not place an objection upon
the record; rather counsel simply responded by stating, “Well, we’ll just go forward then,
Your Honor.” Ms. Booker also maintained the general opinion that even if she committed
technical violations of the Lease and Addendum, they did not warrant her eviction.

During closing arguments, Ms. Booker’s counsel asserted for the first time that the
case should be dismissed as moot so that Ms. Booker could avoid having an eviction on
her record which could affect her eligibility for participation in Section 8. Specifically, her
counsel stated:

This is the first eviction matter I have represented a client in -- where the
client has actually left voluntarily, and surrendered possession of the unit,
and the rent is one hundred percent paid, and the landlord still proceeds. It is
baffling why [Woodside] would require an eviction in this matter. The only
thing at issue is court costs. Mr. Hamlette was advised at the last court
hearing that he could enter the unit. That she had surrendered it . . . . I think
the only reason to proceed is to punish Ms. Booker[.]

The hearing adjourned and the circuit court took the matter under advisement. On
June 5, 2024, the circuit court issued the order presently on appeal. In its order, the circuit
court found that Ms. Booker’s testimony was less credible than Mr. Hamlette’s testimony.
The circuit court found that the Lease and Addendum were contracts by which Ms. Booker
had agreed to abide by various terms and conditions. Namely, it was noted that Ms. Booker
agreed that she and those occupying her residence would keep the exterior of her unit free
of trash and debris, as well as refrain from loud, obnoxious, and threatening behaviors. Ms.
Booker was also prohibited from having unauthorized individuals occupy the apartment.
Based upon the evidence, the circuit court concluded that Ms. Booker had been cited for
multiple violations, and that the evidence supported a finding that Ms. Booker had
committed those violations and breached the Lease and Addendum.

The circuit court also found that while Ms. Booker testified that she vacated the
property, she did not give proper notice and only left the apartment after the magistrate
court’s ruling. It found no merit in Ms. Booker’s contention that she wanted to dismiss the
action to avoid having an eviction on her record. Instead, the court found that she had
breached her contractual obligations and had exhibited hostility towards the terms of the

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Lease and Addendum. The circuit court awarded Woodside possession of the property and
costs in the amount of $76.68. This appeal followed.

On appeal, we apply the following standard of review:

In reviewing challenges to the findings and conclusions of the circuit court,
we apply a two-prong deferential standard of review. We review the final
order and the ultimate disposition under an abuse of discretion standard, and
we review the circuit court's underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 2, Walker v. W. Va. Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997).

Ms. Booker raises three assignments of error. We begin by addressing her
contention that the circuit court erred when it failed to dismiss the case as moot. She
contends that once she vacated the premises, there was no longer an issue in controversy
because Woodside could only seek possession of the premises in a wrongful occupation
case. See W. Va. Code § 55-3A-1. Thus, she asserts that there were no remaining remedies
available to Woodside. Yet, Ms. Booker acknowledges that Woodside’s recovery of court
costs was still at issue but maintains the circuit court should have dismissed the case as
moot and required Woodside to seek recovery in a separate proceeding. We disagree.

We acknowledge that as a general rule, a moot case cannot be considered on its
merits. As the Supreme Court of Appeals of West Virginia (“SCAWV”) has previously
explained: “Moot questions or abstract propositions, the decision of which would avail
nothing in the determination of controverted rights of persons or of property, are not
properly cognizable by a court.” Syl. Pt. 1, State ex rel. Lilly v. Carter, 63 W. Va. 684, 60
S.E. 873 (1908). See also Syl. Pt. 1, Tynes v. Shore, 117 W. Va. 355, 185 S.E. 845 (1936)
(“Courts will not ordinarily decide a moot question.”).

However, “[w]hether a case has been rendered moot depends upon an examination
of the particular facts of a case. Simply stated, a case is moot when the issues presented are
no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” State ex
rel. Bluestone Coal Corp. v. Mazzone, 226 W. Va. 148, 155, 697 S.E.2d 740, 747 (2010)
(quotations and citations omitted). “A case only ‘becomes moot when it is impossible for
a court to grant any effectual relief whatever to the prevailing party; as long as the parties
have a concrete interest, however small, in the outcome of the litigation, the case is not
moot.’” DD Oil Co. v. State ex rel. Ward, 249 W. Va. 483, 491, 896 S.E.2d 456, 464 (Ct.
App. 2023) (citations omitted).

Indeed, “once the issue of mootness has been raised, ‘[t]he heavy burden of
persua[ding] the court that the [case has been rendered moot] lies with the party asserting
mootness.’” Mazzone at 156, 697 S.E.2d at 748 (citations omitted). Given the facts of this

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case, Ms. Booker did not satisfy her burden of persuasion. As evidenced by the record, the
issue of mootness was first raised by Ms. Booker’s counsel in her closing arguments; at no
time did she object to proceeding with the bench trial, and more importantly, according to
the trial transcript, Ms. Booker’s counsel conceded on more than one occasion to the circuit
court that Woodside’s request for court costs was still at issue. Significantly, the Lease
expressly provides that a prevailing party may seek to recover its attorney’s fees and
litigation costs. Moreover, Ms. Booker offers no authority to support her nebulous
contention that Woodside should be required to pursue recovery of its costs in a separate
civil proceeding. Because Woodside prevailed, the Lease permitted it to seek recoupment
of its litigation costs from Ms. Booker in this proceeding. Thus, we conclude that the case
was not moot. Accordingly, the circuit court did not err by ruling on the merits.

Next, Ms. Booker contends that the circuit court applied the wrong legal standard
to the facts of this case; namely, she contends that pursuant to the Addendum, there are
limited grounds upon which Woodside could seek to evict her. It is her position that the
circuit court erred by failing to afford her those protections when it determined that she had
violated the terms of her leasehold. We disagree.

We begin by observing that the Lease and Addendum are contracts. “[A] lease of a
residential dwelling unit is to be treated and construed as any other contract[.]” Teller v.
McCoy, 162 W. Va. 367, 384, 253 S.E.2d 114, 125 (1978). Because it is generally a
question of law, “we apply a de novo standard of review to [a] circuit court's interpretation
of [a] contract.” Finch v. Inspectech, LLC, 229 W. Va. 147, 153, 727 S.E.2d 823, 829
(2012) (citation omitted).

Pursuant to both agreements, Ms. Booker was contractually obligated to abide by
certain terms and conditions. For example, in unambiguous terms, the Lease states that Ms.
Booker was required to keep the apartment, areas of private use, passageways, and
common areas clean and unobstructed by trash, garbage, debris, and personal property; and
prohibited her from engaging in loud and obnoxious conduct, disturbing or threatening
others, and having unauthorized individuals occupying or living in the apartment.
Similarly, the Addendum expressly stated that, among other things, Ms. Booker was
required to maintain her apartment and surrounding areas in a clean and safe condition;
properly dispose of all refuse; act in a manner that did not disturb others; and not have
unauthorized occupants in her apartment. Moreover, both agreements plainly state that
these terms applied to Ms. Booker, her household members, and guests.

Below, the circuit court determined that Ms. Booker violated both contracts by
failing to keep areas around her apartment free of trash and debris; by permitting her
children to engage in multiple instances of loud, obnoxious, and threatening behavior; as
well as by allowing unauthorized individuals to occupy the apartment. On appeal, Ms.
Booker contends that the evidence does not support any of the violations found by the
circuit court. However, after considering the record in this case, we conclude that the circuit

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court’s determinations are supported by the evidence and, thus, we decline to disturb the
circuit court’s finding that Ms. Booker breached the Lease and Addendum.

In her final assignment of error, Ms. Booker asserts that the circuit court erred when
it prevented her presentation of evidence at trial with respect to the Housing Act and Mr.
Hamlette’s alleged conduct. According to Ms. Booker, she should have been permitted to
raise this evidence as a defense to Woodside’s wrongful occupation claim. We disagree
and find that the circuit court properly excluded this issue at trial.

First, there is no indication from the record that Ms. Booker sufficiently preserved
an objection on this issue for appeal. Rather, according to the trial transcript, when the
circuit court ruled on this issue, no objection was offered by Ms. Booker’s counsel. Instead
counsel simply responded that Ms. Booker would proceed with presenting the remainder
of her case. While our law does not require a party to use boilerplate language to preserve
an objection, it does require that: “To preserve an issue for appellate review, a party must
articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the
claimed defect.” Syl. Pt. 2, Cooper v. Caperton, 196 W. Va. 208, 470 S.E.2d 162 (1996).
Here, the response from counsel was not articulated with sufficient distinction so as to
preserve the issue.

Second, even if an objection were properly preserved, we conclude that Ms. Booker
would still be foreclosed from relief on this issue in the present case. As previously
established, Ms. Booker did not file an answer or assert any counterclaim regarding the
Housing Act in magistrate court. We begin by noting Rule 5 of the Rules of Civil Procedure
for Magistrate Courts which states:

(a) Counterclaim. A defendant may state as a counterclaim any claim that the
defendant has against the plaintiff that is within the jurisdiction of magistrate
court. Such counterclaim may be stated together with the defendant's answer
and may be filed and served in the same manner as the defendant's answer,
without additional cost. A reply to a counterclaim shall not be required.

(b) Failure to File Counterclaim. The failure of a defendant to institute a
counterclaim permitted by this rule shall not preclude the institution of a
separate action on such claim at a later time.

However, as evidenced by recent decisions by the SCAWV, this Rule does not
permit Ms. Booker to raise this issue for the first time in her appeal to circuit court.

In State ex rel. Veard v. Miller, 238 W. Va. 333, 795 S.E.2d 55 (2016), a plaintiff
raised an unpaid wages counterclaim in magistrate court and then appealed the magistrate’s
ruling to circuit court. Shortly after filing the appeal, plaintiff initiated a separate circuit
court proceeding alleging wrongful termination. The circuit court consolidated the

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magistrate appeal and new complaint. Employer filed a motion to dismiss the new
complaint, which the circuit court denied, and employer filed a writ of prohibition. The
SCAWV granted the writ and found, among other things, that the circuit court did not have
jurisdiction over the wrongful termination claim as it was not embraced by the unpaid
wages counterclaim. Relevant here, Veard held:

A circuit court may not allow an amendment for an additional cause of action,
on appeal from a magistrate court judgment, that does not embrace the
original magistrate court pleading. An amendment is allowed only to supply
any deficiency or omission in the original pleading, not to inject a new item
or cause of action not embraced by the original pleading.

Veard at 333, 795 S.E.2d at 55, syl. pt. 4. see also id. at 339, 795 S.E.2d at 61 (recognizing
that our code and rules of civil procedure prevent discovery in circuit court following a
magistrate court appeal).

Nearly a year later, the SCAWV further clarified the scope of the circuit court’s
authority when hearing an appeal following a bench trial in magistrate court. In State ex
rel. DeCourcy v. Dent, 240 W. Va. 163, 807 S.E.2d 834 (2017), the SCAWV addressed as
a matter of first impression whether the circuit court erred by permitting new evidence in
the form of witness testimony not previously presented before the magistrate court. In other
words, the issue was whether the record in a civil bench trial in magistrate court limits the
scope of evidence that the circuit court may consider on appeal. The SCAWV noted that
pursuant to West Virginia Code § 50-5-8(f) (1994), nonjury trials in magistrate court are
not proceedings of record. The SCAWV further noted that West Virginia Code § 50-5-
12(d)(1) states that in civil appeals from bench trials in magistrate court, “[t]he exhibits,
together with all papers and requests filed in the proceeding, constitute the exclusive record
for appeal and shall be made available to the parties.” However, the SCAWV found that
new evidence in the form of witness testimony was not contemplated as part of the
“exclusive record for appeal.” As a result, DeCourcy established the following syllabus
point:

An appeal of a civil action tried before a magistrate without a jury under West
Virginia Code § 50-5-12(b) (2016) shall be a trial de novo, meaning a new
trial in which the parties may present new evidence including witness
testimony not presented in magistrate court.

DeCourcy at 163, 807 S.E.2d at 834, syl. pt. 3. Further, in a footnote, DeCourcy expressly
recognized:

We acknowledge that other restrictions affect the circuit court’s authority on
appeal, including those regarding discovery and pleadings set forth in Rule
81(a)(1) of the Rules of Civil Procedure. In addition, we have held:

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A circuit court may not allow an amendment for an additional cause of action,
on appeal from a magistrate court judgment, that does not embrace the
original magistrate court pleading. An amendment is allowed only to supply
any deficiency or omission in the original pleading, not to inject a new item
or cause of action not embraced by the original pleading.

Syl. Pt. 4, State ex rel. Veard v. Miller, 238 W.Va. 333, 795 S.E.2d 55 (2016).

Id. at 167 n.17, 807 S.E.2d at 838 n.17.

While this controlling precedent is not analyzed by the circuit court or the parties
on appeal, it is evident from Veard and DeCourcy, that Ms. Booker’s claim could not be
raised for the first time through her circuit court appeal. Due to Ms. Booker’s failure to
raise the Housing Act through an answer or counterclaim in magistrate court, the parties
could not engage in discovery or otherwise place Woodside on notice of the issue for trial.
Thus, procedurally, Ms. Booker’s Housing Act claims were only permissible through a
separate proceeding. As such, the circuit court did not err by declining to consider the same
at trial.

Accordingly, we find no error and affirm the circuit court’s June 5, 2024, order.

Affirmed.

ISSUED: April 29, 2025

CONCURRED IN BY:

Judge Daniel W. Greear
Judge S. Ryan White

Chief Judge Charles O. Lorensen, not participating

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