Heavner v. Three Run Maint. Ass'n, Inc.

Robert Heavner, Defendant Below, Petitioner, v. Three Run Maintenance Association, Inc., Plaintiff Below, Respondent.

No. 18-1080

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 10, 2020

(Berkeley County CC-02-2017-P-412)

MEMORANDUM DECISION

This is an appeal from multiple orders¹ of the Circuit Court of Berkeley County, West Virginia, granting judgment against petitioner/defendant below, Robert Heavner² ("petitioner"), in favor of respondent/plaintiff below, Three Run Maintenance Association, Inc, ("TRMA").³ The circuit court found that the approximate four-acre parcel petitioner obtained at a tax sale was subject to a fifty-foot roadway easement for the use of lot owners in the adjoining subdivision and granted a permanent injunction against petitioner from interfering with the easement and/or the use of an adjacent lake and recreation common area. Petitioner contends the circuit court erred in its assessment of the controlling plat and therefore granted an incorrect easement width. Petitioner further contends the court erred in finding that he created a private nuisance and awarding attorney fees, where he prevailed on certain theories advanced by TRMA.

This Court has considered the parties' briefs, oral arguments, and the record on appeal. Upon consideration of the standard of review and the applicable law, we find no substantial question of law presented nor prejudicial error. For these reasons and those set forth herein, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure. Certain other matters are remanded for determination by the circuit court, as more fully set forth herein.

I. Factual and Procedural History

In 1966, C. H. McDonald set out to create a subdivision in the Mill Creek District of Berkeley County, West Virginia. The subdivision property is accessed from Three Run Road by way of a roadway at the entrance to the subdivision, which crosses over Three Run Lake and dam (the "dam roadway"); the roadway is now known as "Aspen Drive" and is the only means of access to the subdivision property. In 1966, McDonald recorded a "preliminary plat" designated as "Three Run Acres" which contains an annotation which reads "Dam Roadway 12' Wide."

After conveying a few lots in Three Run Acres,⁴ McDonald apparently desired to convey a large portion of the subdivision property to Arthur Radin for continued development. On July 16, 1969, McDonald executed a deed to Radin conveying, by metes and bounds, approximately seventy-eight acres of the subdivision property inclusive of the dam roadway, the lake, and an adjacent recreation area.⁵ The deed is accompanied by a plat which denotes a "30' Wide Roadway" running through the property conveyed, but no specific reference to the dam roadway or its width.

Almost immediately thereafter, on July 31, 1969, Radin recorded a plat of the subject property entitled "Three Run Woods"; it likewise makes no specific reference to the dam roadway or its width, but contains a "Note" which generally expands roadways in the subdivision to fifty feet wide. The "Note" reads:

The lot property lines extend to the centerlines of roads as shown and noted. A 25 ft. wide easement over adjacent lots, or a 50 foot wide easement through lots in each case totaling 50 ft. in width is retained for the purpose of constructing and maintaining road access. The road easement has a sq. ft. radius in the cul-de-sacs as indicated.

(emphasis added). The plat also contains shaded areas, which appear to include the lake and recreation area, with a notation that these areas "indicate[] jointly owned premises."⁶ Neither thedocuments in the appendix record nor testimony adduced below delineate the exact boundaries of Three Run Woods relative to Three Run Acres with sufficient clarity; however, testimony makes clear that both subdivisions continue to coexist, but with Three Run Woods comprising the overwhelming majority of the subject area. Both subdivisions continue to be accessed by the same entry-point: the dam roadway.

In 1979, Radin conveyed four specific lots and "[a]ll of the remaining lots, pieces or parcels of land" in Three Run Woods to L & L Corporation. Notably, the conveyance specifically refers to the 1969 plat for Three Run Woods. L & L Corporation thereafter conveyed the same to Omco Corporation in 1981. In 2008, Omco quitclaimed the "lake area" consisting of 4.7283 acres back to L & L Corporation. Notwithstanding these conveyances, homeowners within the two subdivisions continued to maintain the lake and recreation area, as well as the roads.⁷

In 2014, petitioner purchased the 4.7283 acre parcel—which ostensibly included the lake/recreation area and roadway over the dam—at a tax sale for $25 after the property taxes were deemed delinquent. Three years later,⁸ in 2017, petitioner began exercising control of the property by putting "no trespassing" signs near the lake area, digging a hole adjacent to the dam roadway, placing landscaping timbers/railroad ties and cement pavers alongside the dam roadway, and claiming the subdivision homeowners had rights to only a twelve-foot easement over the dam roadway.⁹ The homeowners objected because the items along the road prevented them fromparking there while awaiting the school bus, obstructed parking necessitated by icy roads in the subdivision, and otherwise created a hazard to vehicles traveling in and out of the subdivision. Petitioner demanded $10,000 to purchase the lake area from him; after a homeowner offered to do so, he raised the price to $20,000.

TRMA¹⁰ filed the instant action seeking an injunction against petitioner's obstruction of the easement, asserting that petitioner's tax deed was void or voidable,¹¹ and alleging a claim for nuisance. At the preliminary injunction hearing, the president of TRMA testified that the dam roadway obstructions created a safety hazard for vehicles traveling past each other by preventing them from leaving the asphalt if needed and also prevented parents from parking alongside the dam roadway to await the school bus with their children. Their inability to temporarily park in this area while awaiting the bus required the parents to park on the other side of Three Run Road and their children to then cross back over the road to board the bus. Petitioner testified that he merely placed the timbers and barriers there to prevent vehicles from sliding into the lake and to protect himself from liability.

After the hearing, the circuit court issued a preliminary injunction which required petitioner to remove the cement pavers and railroad ties/timbers from alongside the dam roadway and to fill in the hole he created adjacent to the roadway. Petitioner failed to fully comply with the preliminary injunction order, only moving the materials back further from the dam roadway; as a result, the court issued a rule to show cause. Upon issuance of the rule to show cause, petitioner complied and the court awarded TRMA attorney fees in the amount of $1,350.

Thereafter, the circuit court granted TRMA's motion for partial summary judgment as to the width of the easement across the dam roadway, finding that a fifty-foot easement existed. The circuit court found that petitioner's tax deed ultimately derived from Radin's deed, which referenced the 1969 plat establishing a fifty-foot easement, stating that "[petitioner's] grantors took the property subject to the easement described in the 1969 Plat." The circuit court denied petitioner's motion to dismiss the count alleging that his tax deed was void or voidable, findingthat issue and the issue of whether petitioner interfered with the easement was not yet ripe for consideration.

Thereafter, petitioner effectively moved to set aside the summary judgment award as to the fifty-foot easement and denial of his motion to dismiss, by filing his own motion for summary judgment on those issues. Petitioner argued that "newly discovered evidence" indicated that the prior ruling was in error. In particular, petitioner pointed to a "Description of Resurvey" dated December 7, 1973 and a deed of Lot 48-A in Three Run Acres to Charles Michael Heck and Linda Kay Heck dated July 19, 1974 (the "Heck deed") which he claims supported his contention that there was merely a twelve-foot easement. The circuit court rejected the idea that these publicly-recorded documents constituted "newly discovered" evidence, but nevertheless considered them and determined they had no effect on the prior ruling. The circuit court found that the documents mention only a thirty-foot easement and "do not pertain to the specific portion of the road through [petitioner's] land that is currently at issue."¹² The court also denied petitioner's motion for summary judgment as to the statute of limitations on the void/voidable tax deed issue, citing the need for further factual development.

On May 24, 2018, the court conducted a bench trial on the remaining issues. Petitioner did not testify at trial,¹³ nor did he call any witnesses; TRMA's president and vice-president testified regarding the alleged nuisance and obstruction created by petitioner's conduct.¹⁴ Nineteen joint exhibits were submitted as evidence, consisting primarily of documents purporting to demonstrate the chain of title, along with five additional exhibits by TRMA consisting mainly of correspondence from petitioner. No experts testified on either party's behalf, nor did counsel conduct any closing argument. Rather, the court directed the parties to submit findings of fact and conclusions of law.

On July 3, 2018, the circuit court entered a judgment order finding 1) the lake and its surrounding recreation area was not "jointly" owned by the residents, but rather was a common area designated for the "use and enjoyment of all [] owners and their guests"; 2) the tax deed was not void inasmuch as the county commission, and not the circuit court, had authority to determineissues of...