Law v. Monongahela Power Co.

court, trial properly presented to the not granted. must In the assuming that proceeding,

instant evidence majority’s contract” so-called “whole ex-

ists, Powderidge nevertheless mandates the

granting summary judgment because such properly

evidence was tendered Therefore, respectfully I

trial court. dissent majority decision in this case. I am

from the Maynard

authorized to state that Justice

joins dissenting opinion. in this me LAW, Jr., B. Plaintiff

Stewart

Below, Appellant v. COMPANY,

MONONGAHELA POWER Power, Corporation, Allegheny

d.b.a. Bureau of State of West

Commerce, Division of Natural Re

sources, Corporation, Public Land Virginia Department

State West

Transportation, Highways, Division of Below, Appellees

Defendants

No. 29179.

Supreme Appeals Court of Virginia. 6, 2001.

Submitted Nov. 12, 2001.

Decided Dec.

551 granted summary judgment

er court had (herein- Allegheny Company favor of Power “APC”), after the State of West Commerce, of Natural Bureau of Division (hereinafter “DNR”), and Resources Virginia Department of State of West (here- Transportation, Highways Division of “DOH”). inafter filed the underlying alleging civil action entitlement way proper- to a to his easement ty through a locked access road near Stone Upshur County. Coal Lake lant in contends lower erred denying his motion for of a reconsideration of entered in favor Appellees where numerous issues of fact existed and clarification of material prop- those facts was desirable to determine of application er the law. Based record, counsel, arguments review of the of precedent, and con- relevant this Court the lower court abused its dis- cludes denying in cretion for reconsideration.

I. Facts property question, The in cur- fifteen-acre rently by Appellant, originally owned was part forty-seven-acre pur- of a tract of land (here- by in Amos chased R. Shoulders tract”). inafter “the Shoulders Mr. County sold five acres Road Shoulders near (hereinafter to Mr. David “the Golden Golden tract”).1 Mr. Shoulders and died Garrett, Farber, C. Elizabeth William G. property heirs further divided his and con- Gassaway, Virginia, Attorneys for the West veyed by various parcels deeds. Appellant. 12, 1925, February In a deed T.E. Kimble, McElwee, Jeffrey A. Robinson & Robinson fif- separating West to W.E. Clarksburg, Virginia, Toni West M. Nessel- by Appellant tract now teen-acre owned rotte, Fairmont, Virginia, Attorneys for West tract, express provi- from the an Shoulders Appellee, Allegheny Power. way right sion included for “a free Kozakewich, Jr., Steptoe Michael & John- land, and to said fifteen acres tract of which son, Virginia, Clarksburg, Attorney for right way practical extend in the most Appellee, Virginia. State of West through or direction the tract of course land day described deed to the said T.E. PER CURIAM: tract in a West and the described deed of Law, Jr., an appeal This is Stewart B. same to the said and date Lillie Smith (hereinafter “Appellant”) from of a extend from said 15 acre tract of land to denial Golden, motion for reconsideration tract land now owned all entered David County. Upshur being part low- of of land Circuit Court of The said tracts said tract, consisting County public apparent- 1. The Golden of five acres on Road road which original forty-seven edge ly the western acre access to the tract. served as Shoulders tract, very Shoulders either near bordered was APC, land....” roads were constructed the DOH R. tract of Amos Shoulders formally right way eventually abandon that such did Appellant contends access from the fif- Road was intended to create tract Road west of the

teen-acre pur- September On tract. fifteen-acre property tract of chased the fifteen-acre included, verbatim, conveyances question. deed other of the fifteen- Various pres- right and tract made from 1925 to the reference deed acre were ent, way way. purchased also four oth- referencing all for in- bordering originally part gress egress to the fifteen-acre tract.2 A er tracts tract, way totaling A conveyance right of 150 acres. twen- referenced the Shoulders acres, less, land, purchased by ty-five-acre tract “to said 15 more ingress egress fifteen-acre tract and Coun- as a means of lies between the use ty Road from same....” 14/3.3 that a road con- entered into a contends On June DOH APC, “North agreement with APC under which structed known as the Lake written Road,” roads, including County contemplated by road public Road the alternate several destroyed agreement to be abandoned and when between DOH APC. were Road, by part essentially which runs Lake was created As North Lake Stonecoal APC. submerged agreement, agreed parallel to to the abandoned and of this 1971 APC con- 7, County gated beyond a replace Road is and locked struct alternate roads to the de- Lake, landing stroyed public purchased public access boat on Stonecoal roads. APC the remaining originally and that North Lake Road is three tracts that were APC contends Thus, than a private tract. of a maintenance road rather part of the Shoulders the County 7. original property, only Appel- replacement for Road Based Shoulders the predecessor in currently information from his lant’s fifteen-acre tract is not obtained title, requested key by Appellant a owned APC. the Farm, and gate at the French Creek Game in 1972. APC constructed Stonecoal Lake Appellant request his was denied.4 The then 1, 1972, By APC leased lease dated October requested key allegedly a from APC. APC surrounding properties the lake the certain that it would obtain a Appellant informed the DNR. The Lake Wildlife the Stonecoal him, Appellant key for but the never received “WMA”) (hereinafter Management Area key. the DNR, leases, “subject managed by all the liens, easement, Appellant way, November the filed rights of or other en- On court, record, cumbrances, seeking an complaint a in the lower whether or not of now right way on North Lake outstanding respect of or created hereafter with easement gain to his Road in order to access fifteen- premises.” the record is not the While alternative, Appellant entirely regarding acre tract. In the clear what additional Dowell, key key, that a a but he was informed 2.Howard J. owner of the fifteen-acre at French Game Farm. available Creek 1970, tract from 1957 to submitted an affidavit 1999, 14, indicating December that he used on Specifically, of fifteen-acre tract lies west way right from his fifteen-acre tract to tract, County twenty-five Road acre 14/3 Summers, County 7. Forrest whose access Road twenty-five acre tract on its eastern borders the tract, had owned the entire Shoulders father edge. in his affidavit that the owners of all the stated DOH, DNR, oil, individuals, namely 4. Some tracts subdivided from the Shoulders tract used owners, gas, in need and mineral and individuals way County 7. Mr. to access Road cemeteries, keys given were to certain of access Christopher Poling, Appellant’s immediate gates. submitted The to affidavits from access title, pur- predecessor in indicated that when he indicating that former owners property, he he was told that "could chased abutting owning property individuals several key gate the lock to the on the access have County that North Lake Road Road believed by the lake.... This road was built to road replacement road for as a had been constructed replace original 7, County generally road that was flooded when North Lake Road Road since County parallel 7 roadbed. put Poling request ran the old Road Mr. did not the lake was in.” damages right way petition appeal sought loss of his of that denial with this enjoyment property. 16, of his January on Court lant contends that fifteen-acre tract II. Motions Under Rule now, purposes, practical for all landlocked. 59(e) 60(b) and Rule assertion, Appellees questions em- appellate standard of review in phasizing portion that a total 150 acres dependent upon this matter is resolution owned borders Appellant’s January the issue of whether the 14/3, provide Road which could also access to 26, 2000, “Motion to Reconsider Clari and/or adjoining fifteen-acre tract from the east. fy” is motion deemed Rule or a Rule Subsequent discovery, Appellees 59(e) motion.6 In one Toler joint summary judgment motion for filed Shelton, 778, 24,1999. on November filed a this Court motion “[a] opposi- December memorandum in 60(b), W.Va.R.C.P., pursuant made to Rule summary judgment, tion to motion for running appeal does not toll the time alleging issues material fact eight provided months four [now months] outlining existed and those issues. The low- Code, 5, Chapter Article hearing on er court conducted the motion However, filing Section as amended.” summary judgment on December 59(e) “suspend[s] of a Rule the run granted ning appeal, of the time for and that time against order dated Janu- begin entry does not to run until the of an ary 2000. The lower court held that the deciding order the issues raised the mo applicable two-year statute of limitations had tion.” Armstrong, Riffe expired and that even if the statute did not (1996), holding mod moot, render the case he had grounds, on other Moats v. Preston ified divested the easement adverse Comm’n, possession proper- since APC had used the (1999). years adversely Appellant’s ties ten interests. This Court articulated the distinc 26, 2000, 59(e) January 60(b) Appellant

On filed a tion between a a Rule and Rule Clarify” “Motion to Lieving Reconsider motion in three of v. and/or 5, 2000, January disagree- Hadley, order. There is among parties regarding ment whether “A as follows: motion which would 59(e) this motion should be qualify characterized as Rule otherwise as Rule motion that 60(b) motion, thereby failing to toll run- days is not filed and served within ten of the ning appeal Court, 60(b) period entry of the to this judgment or a is a Rule motion 59(e) motion, tolling running Rule regardless styled of the of how and does not toll the appeal period.5 Appellant appeal period contends that four month appeal to this he intended his motion for reconsideration as court.” See also Rose v. Thomas Memorial 59(e) Foundation, Inc., Hosp. Rule motion and it filed within ten days receipt January (2000); business of his of the ex rel. State McDowell order. The lower court Dep’t Stephens, denied the 192W.Va. Sheriff's (1994). Sep- Likewise, motion to reconsider order entered 452 S.E.2d 432 this 18, 2000, Appellant tember and the explained syllabus filed his Court point as follows in appeal summary cause; 5. The prise, neglect, did not excusable or unavoidable Court, judgment (2) order to this and we (3) entertain newly discovered evidence fraud present appeal from the lower court’s denial ,, misrepresentation, or other misconduct of of the motion for reconsideration. (4) void; party; judgment an adverse ...; judgment (6) any has satisfied 60(b) Virginia 6. Rule of the West Rules of Civil justifying other reason relieff.] provides, part: Procedure in relevant 59(e) Virginia Rule of the West Rules of Civil just, On motion and such terms as are ”[a]ny provides Procedure that motion to alter or party the court relieve a ... from a final judgment amend the shall be filed not later than order, judgment, proceeding for the follow- days entry judgment.” after of the (l)[m]istake, inadvertence, ing reasons: sur- Powderidge 60(b) two of Unit Owners Association be considered a Rule motion and man- Ltd., Highland Properties, aged accordingly.8 (1996): 60(b) III. party Appellate filing When a a motion for Review of recon- Rule Denial sideration does not indicate under which The determination that a motion Rule of Civil Procedure it is 60(b) should be characterized aas Rule mo motion, filing the the motion will be consid- tion particularly. significant in terms of 59(e) ered be either a Rule motion to scope appellant syllabus review. In point 60(b) judgment alter or amend a or a Rule Toler, three of explained this Court motion for judgment relief from a order. appeal “[a]n of the denial of a Rule If the motion is days filed within ten brings motion to consideration for review entry circuit judgment, court’s the mo- only order denial itself and not the tion is as a treated motion to alter or supporting substance underlying judg 59(e). amend under Rule If the motion is judgment ment nor the final order.” ten-day limit, filed outside the only can syllabus Toler, point four of this Court con 60(b). be addressed under Rule tinued: “In reviewing an denying order 60(b), W.Va.R.C.P., motion under Rule contends that appellate function of the filing January of his is limited to motion should deciding 59(e) whether the trial court be considered a abused its motion tolling ruling discretion in running grounds sufficient the statute of limitations and disturbing permitting finality appellate judgment full review the un derlying timely were shown in a summary judgment action.7 manner.” prevail cannot argument, however, January Further, because the syllabus mo point five of Toler, tion was not days filed within ten this Court “[a] January entry of judgment the lower court’s vacate a pursuant made to Rule 60(b), W.Va.R.C.P., order. is addressed to the sound attempts escape by argu conclusion discretion of the court and ruling the court’s ing ten-day time limitation did not on such motion will not be disturbed on begin to run until he appeal received the order in unless showing there is a anof abuse standard, the mail. This is not the correct of such assessing discretion.” In issue Appellant’s argument regard in that a whether lower court abused its discretion Applying fails. computation 60(b) pe of denying relief, time Rule this Court ex 6(a) riods set forth in Rule plained the West syllabus point follows six Virginia Procedure, Rules of court, Civil the tenth Toler: “A in the exercise of discretion day entry after the judgment, of the given exclud provisions the remedial of Rule ing holidays weekends and 60(b), W.Va.R.C.P., as the rule re recognize should 20, quires, January 2000. The motion liberally rule is to be pur construed for the 26, was not January filed until pose 2000. accomplishing justice Conse and that it was quently, January designed motion must to legal facilitate the desirable ob- 59(e) title, and, As this Court Rule meaningless "[a] the label. As a it is Riffe proper motion is the motion which a sum- significantly, designat- more when a motion is mary judgment may timely attacked.” 197 reconsideration,” merely ed as a “motion for W.Va. at 477 S.E.2d at 545. party employing gives the term the court nearly unfettered discretion to determine its Appellant’s 8. We consider the motion as a Rule meaning scope. problems These can be 60(b)(6) requesting "any motion relief for other labeling avoided counsel the motion accord- justifying operation reason relief from the of the ing applicable. to the rule he or she believes is judgment.” In Powderidge, footnote 22 of this 196 W.Va. at 705 n. 474 S.E.2d at n. 22. 885 Court stated: appeal summary judgment A direct from a order We continue to caution trial counsel a appropriate through is the more means which to explicitly “motion for reconsideration” is not challenge legal sufficiency ruling. of the sanctioned the West Rules of Civil good Procedure. There are reasons to avoid 60(b) motion to its order lant’s Rule vacate to be decided on

jective that cases are Id. at 502 S.E.2d at 182. dismissal. merits.”9 explained that this Court Powderidge, In v. In ex rel. Consolidation Coal Co. State 60(b) an invitation for relit- is not while Rule Clawges, 206 W.Va. 523 S.E.2d a court may encourage to igation, it be used again lib- emphasized the this Court Specifi- prior determination. a reconsider 60(b) inqui- afforded a eral construction Rule cally, this stated: Court 60(b)(6) ry a Rule motion and utilized 60(b) explicitly Although does not Rule permit an order to be vacated. a motion for clarifica- party a to file allow justify- very good a existed “reason There reconsideration, it is well estab- tion and ing operation judg- from the of the relief 60(b) proper Rule motion lished a 60(b)(6). That R. Civ. ment.” W.Va. P. prior urge a vacate court to reconsider was that the circuit court entered reason 3, Lieving Hadley, Syl. pt. judgment. an addi- granting the Petitioner order (1992); $1,000,000 coverage in insurance tional Bego, Bego v. 177 W.Va. 350 S.E.2d set- determining first whether the without Constructors, (1986); Inc. v. CNF agreement which the Peti- tlement under Co., 57 F.3d Donohoe Construction money towas receive the additional tioner Cir.1995) (4th curiam); (per 400-401 even existed. Miller, A. Arthur R. & Wright, Charles Thus, this Id. at 523 S.E.2d at Kane, Kay Mary Federal Practice and repeatedly employed a Rule Court has (2nd ed.1995). § at 254-64 Procedure 60(b)(6) explore analysis to elements 704-05, at 474 S.E.2d at 884-85 judgment in underlying legitimate effort omitted). (footnote abused its whether trial court determine 60(b), par- of Rule The liberal construction denying discretion in relief. summary ticularly of a within the context case, present although In determination, in this judgment evident attempt lant has not succeeded in his Landmark Court’s resolution Wolford persuade perfected Court that has he Co., 528, 474 American Ins. 59(e) underlying challenge Rule order (1996). Wolford, this Court summary judgment, our liberal construc- 60(b) in which a a situation Rule encountered 60(b) appellate tion of Rule and the attendant from a motion relief 60(b) permits this review of a Rule denial had denied. Based determination an Court to review this issue under abuse this Court’s determination standard. Our for abuse discretion review existed, con- of material fact issue Court necessarily degree entails some discretion appellant’s cluded “the denial pre- claims underlying consideration concerning con- Landmark sented to the lower court determine at stituted an abuse of discretion.” Id. its discretion whether the lower abused consequently 474 S.E.2d 459. The Court in denying motion for recon- proceedings. Id. remanded further sideration. Similarly, Shepherd In in Foster Good Circuit Court IV. Standard Inc., Caregivers, 202 Volunteer terfaith Summary Consideration 81, (1998), 502 178 this Court W.Va. S.E.2d Judgment Motion held, genuine based the existence of fact, Aetna that the In three of issues material lower Surety summary judgment10 Casualty Co. v. Insurance granting in & Federal erred York, 160, 148 133 denying appel- in Co. New S.E.2d abused its W.Va. discretion 2, Shep- Syl. had Watch v. Atlas The lower court "converted Good 9. See Pt. Hamilton Co. 10. Container, 52, Inc., 190 779 supplemental 156 W.Va. S.E.2d a motion to dismiss into herd’s (1972) ("Inasmuch adjudica- courts favor the summary judgment as pursuant to West motion for merits, Rule Procedure, tion of cases on their Virginia 202 Rule Civil 56.” be of Civil Procedure should Rules 84, S.E.2d at W.Va. at 502 181. construction.’’). given a liberal

557 fact; try a (1963), court can issues of determina- “[a] late this Court 770 summary judgment only should be as to tion can be made whether there only specific, it is that there no granted when clear be if there are issues to be tried. To inquiry fact to tried and genuine any issue of be any from source evidence the record to clari- concerning facts is not desirable which a inference can be reasonable syllabus fy application of the law.” nonmoving party, drawn in favor of the sum- Peavy, 192 W.Va. point three of Painter v. 105, mary improper.” at 464 judgment is Id. (1994), 189, 755 this Court ex- 451 S.E.2d at 747. S.E.2d court’s func- plained as follows: “The circuit Lantz, in Armor v. As we observed summary judgment stage to tion at is not “[c]ourts W.Va. 535 S.E.2d truth weigh and determine the the evidence strenuously assuming must avoid the role matter, is to determine whether but ruling trier of fact in on motions for sum- genuine a for trial.” As this there is issue mary judgment:” at at Id. emphasized in v. Precision Williams Court varying inferences be “[WJhere Coil, Inc., 194 W.Va. evidence, drawn from the same we must view (1995), “[sjummary judgment should de- underlying light facts in a most favorable dispute as to ‘even where there is no nied non-moving party.” Id. at only evidentiary facts in the case but as S.E.2d at the conclusions to be drawn therefrom.’” (quoting at 336 Pierce v. Id. 459 S.E.2d Allegations Error V. The (4th Co., 910, 915 Ford Motor 190 F.2d Cir. Appeal on to this Court 1951)). contends the lower that, emphasized This has also Court denying court abused discretion determining on there is review whether “[i]n Clarify” and “Motion to Reconsider and/or genuine a issue of material fact between the granting lower court erred ‘in parties, this will construe the facts Court underlying motion for ” losing light party.’ most favorable genuine material issues of because numerous Association, Inc., Alpine Property Owners fact and clarification of those issues remained Development Company, Mountaintop necessary proper of this resolution 12, 17, (quot 365 S.E.2d Appellant asserts that case. The Co., ing Masinter v. WEBCO regarding fact raised issues of material were (1980)). non- 262 S.E.2d in which abandoned the manner the DOH moving party benefit of all is entitled “the submerged by provid- without roads the lake determinations, inferences, ‘[credibility adequate properties.11 ing access to affected evidence, weighing draw genu- contends that a further ing legitimate from the facts inferences regard fact exists with ine issue of material ” functions, jury judge[.]’ not those of are Road, constructed to whether North Lake Coil, 52, 59, Williams v. Precision APC, replacement should be considered Anderson v. quoting 459 S.E.2d simply a mainte- Road 7 or road for Inc., 242, 255, 106 Liberty Lobby, 477 U.S. road as APC contends. nance (1986). Likewise, 2505, 91 L.Ed.2d 202 S.Ct. that the lower Appellant also contends inferences to “[t]he we have concluded Appellant had finding affidavits, court erred underlying from the ex be drawn way from the to establish hibits, failed depo interrogatories, answers APC, tract, now owned Golden light in the most sitions must be viewed granted express easement Road 7. The motion.” party opposing favorable tract,” Chambers, phrase “to the Golden title used the 464 Hanlon v. 195 W.Va. (1995). that such refer- Appellant but contends 747 a motion for the “On properly interpreted as intend- summary appel- nor ence could be judgment, neither a trial The lower court dis- Appellant 1974 and 1996. 11. maintains that the lower court between The fact, manner in finding significant as relevant to the that no action re- cussed this erred in gained proper- prior access to the garding which owners to North Lake Road had been access ty by Appellant’s predecessors in title taken the 558 County

big discovering a of access Road in title from method that the road was Appellant tract. or near the Golden The barricaded. subsequent that use of such asserts access VI. Discussion easement, prescriptive route created even consistently This Court has held language if express the deed failed to proving that an “[t]he burden easement through tract create an easement the Golden party right rests on claiming such and County 7. Road by convincing must be established clear Appellant also asserts that the lower proof.” Syl. Berkeley Development Pt. ruling court erred in that the doctrine of Hutzler, Corp. v. 159 W.Va. 229 S.E.2d possession Appellant adverse divested the (1976). Similarly, proving the burden of any rights Appellees to the easement. The easement, an by the termination of either easement, any by maintain that whether ex- possession, or abandonment adverse is the press language by prescrip- or the deed party who claims that the easement has been

tion, extinguished through pos- was adverse Lantz, v. terminated. Strahin 193 W.Va. session since the maintenance road had been 12, 15 (1995). 456 S.E.2d See Keller Appellant barricaded since 1972. The also Hartman, S.E.2d 89 that contends the lower erred find- (1985). County ing that Road can be used as 14/3 access to the fifteen-acre tract. The case, present In the the lower court economically lant that it contends is not feas- presented was with numerous factual asser ible to enter the fifteen-acre tract from by litigants. tions all From the evidence County twenty-five- Road and across the 14/3 presented, following essential facts can by Appellant. acre tract also owned gleaned. County initially Road was Thus, Appellant maintains that the lower public highway providing to both access concluding court erred in that no easement general public any property owners who by prescription by necessity sup- was private by accessed property traveling them ported by the facts. County Road 7. The fifteen-acre tract now Appellant also maintains that the low- owned became landlocked ruling er court erred the statute of tract, when it was divided the Shoulders any action limitations barred filed after 1976 public access to the road was obtained regarding Appellees’ closure of North by traveling west to Road 7 across Lake Road. The contends that two other tracts of land. That access was set road, public North Road is a Lake to which express forth quoted easement in applies no statute of limitations an where above, language and similar was used to cre challenging individual is to access. an ate easement in the deed. alternative, In the contends Appellees express if contend that private that even North Lake Road is a road, provided easement only he did not access “discover” his cause of action the Golden tract, against through APC until he was rather than denied access. He the Golden tract consequently discovery maintains Road 7. The counters argument by rule tolled the statute of asserting limitations. The the ease- Appellees discovery assert rule does ment was through express created either ápply deeds, to toll language the statute since no action necessity,12 prevented predecessors which prescription.13 taken There is evidence in the rec- Berkeley Syllabus Development point implies four of grantee an easement in favor of the Hutzler, Corp. v. portion original over the retained land of (1976), provides grantor. as follows: conveys portion Where one owns and prerequisites This Court has completely his land which is surrounded prescriptive syllabus easement as follows in partially by retained land or the land of the Wallace, point two of Post others, grantor and tire land of without ex- 112(1937): S.E. pressly providing ingress a means of egress, and where open, uninterrupted there is no other reasonable continuous and use land, another, granted means of access to the the law aof road over the lands of under bona language express agree- of deeds manner in ord mine the which the 1971 an at least to created easement the Golden rights Appellant, ment affected Appellant presented evi- property, and the with all inferences at the consistently had dence that residents used stage being Appellant, drawn in favor of the County that easement to access Road 7. The as the non-movant.15 consistency of is also relevant to a deter- use possession by of adverse mination whether agreement required APC to ac deprived APC would have of quire title to all properties abutting fee alleged use of his easement. These issues portions destroyed. of the roads to be sufficiently developed were not at lower raised issue of material Appellant’s court level. The in assertions regarding fact properly whether APC ob matter, this as as well the refutations title, tained fee free of encumbrances. The Appellees, created undetermined and materi- obligated title APC was to obtain included regard al issues of fact with to the public private rights-of-way whatever his rights lant’s to current use the easement torically adjoining properties, served whether property. to access arising before or after this State assumed regard right With responsibility public in some roads Road, agree to utilize North Lake the 1971 and to thereafter.16 The extent which APC ment and implicated. between DOH is APC title, fee obtained free of and encum liens essence, agreement, provided That brances, very gravamen is this civil County pro APC would relocate Road 7 to upon action. DOH relied APC’s certification property vide access to owners who utilized If, fact, peril. of title at its own the lower County propert Road 7 as access to them right court finds that the had a ies.14 development We find that further County access to Road then DOH and Appel essential to determine whether the taking have of an APC effected a ex rights lant’s have violated the aban tremely right valuable for which access procedures donment and relocation chosen compensated.17 has not been by APC and DOH. When the State elected governing authority While the statutes abandon Road several concerns permit rights it to public DOH abandon identified, including should have been reloca right way, public abutting public general tion roads for use landowners have a continued means of and entitlement to alternate access or com ingress egress just compensation pensation for removal access certain ignored powers property using County where the abandonment owners Road It are plenary. regarded was incumbent the lower court to deter- right, objection public claim of and without even after road loses its character as fide State, owner, road.); (Utah years, period Mason v. for a of ten creates in 656 P.2d 1982) (concluding property right by abutting prescription the user owner's of such road right preserve quo status entitles owner to the continued use thereof. only public over easement abandoned road APC, necessary ingress agreement provided where and to extent then Power, egress property). and from Monongahela would construct alternate "generally designated roads green locations December, print on the dated 1969.” Virginia repealed Legislature 16. The West copy print of that in the before contained record county system of road maintenance 1933 and white, this Thus, Court is in black and Court this adopted program. statewide effective on cannot discern where Road 7 to be July authority relinquished counties over according map. relocated to that Nor is county and district roads to West clear whether from the record the lower court State Road Commission. made that determination and it in considered regard granting summary judgment. ex 17. In one of State rel. Ashworth al., et v. The State Road Commission (Tenn.Ct. Pippin, 15. See Hall v. 984 S.W.2d 617 Court stated: App.1998) (holding property right public high- that owners of abut- of access to "The and from ting public private way property once road continue to the owner can have is a of which just compensation.” property deprived access that road without easement over to their not be 560 upon challenge fact also based Code

A issue of material 55-2-12(19), Appellant’s is a material regard “[b]ecause to the access there exists with County question through regard Road of fact with to when the property to his 14/3. Appellant plaintiffs’ right that the of action so as to Appellees maintain accrued running of of limi- North Road to commence the the statute does not need to use Lake County tations, clearly question Road matter was property his since the access 14/3 322, Appel jury.” at at 566.19 tract owned the the Id. 400 S.E.2d borders another of the lant on the border fifteen-acre eastern We to mention the also feel constrained however, question. Appellant, in tract Road. issue of the burden North Lake indicating that it was not introduced evidence squarely has Although the issue not been economically to utilize Road feasible Court, placed this there has been before fifteen-acre tract due to to access the 14/3 some that the seeks to indication Again, granting sum the difficult terrain. on his construct a residential subdivision mary judgment, obliged court is the lower property Road as and utilize North Lake in favor of the non-movant. draw inferences remand, access. If this issue on surfaces is a The issue whether Road 14/3 questions obvious of burden to the easement possible for the fifteen-acre tract entrance raised, will and additional issues of fact via North Road is and whether access Lake may arise. necessity issue of fact is another material has not VII. Conclusion which been resolved.18

Application two-year Upon present of the statute the issues the review 5, matter, 2000, discovery January summary judg- of limitations and rule create the the 26, order, Appellant’s Ap January ment and additional issues of fact based the 2000, reconsideration, pellant’s discovery that motion for we conclude contention rule applies and that tolls the statute limitations. the lower abused its discretion 60(b) agree that denying contends that the 1971 We find relief. adequately proper not ment did address his demonstrated “sufficient grounds disturbing finality ty rights, properly alternate roads were not constructed, 4, Toler, judgment.” property Syl. Pt. 157 and his became land W.Va. further that 204 at 86. This conclusion is locked. contends S.E.2d particularly inescapable light violation until admo- he did discover this he was leading denied access to the road to his nitions of six of Toler caution- ing property. development “recognize facts a trial court to rule Further necessary liberally [Rule is to be construed for ] to determine justice discovery purpose accomplishing and that entitlement relief under rule argument. Stemple designed stated in As this Court facilitate the desirable Dobson, legal objective 400 that cases are to be decided S.E.2d (1990), involving also on the a statute limitations merits.” duty, engaged 18. The determination of whether an easement is in conduct breached that (3) "necessary” question entity has a deemed a of fact. conduct of that has been injury. Steenwyk, causal relation Black v. 333 Ark. 970 S.W.2d (1998). Syl. Gregory, See Pt. Sewell v. ("The (1988) year 371 S.E.2d 82 two statute of arising a tort latent limitation for action syllabus City Hosp., point 19. In four of Gaither v. begins in the construction of a house defects Inc., W.Va. knew, injured parties run when the explained: Court diligence reasonable have exercise of should actions, known, In tort unless there is a clear statu- injury its of the nature their tory prohibition application, sources, determining to its under the point in is a time discovery begins the statute of limitations question jury.”); rule of fact to be answered knows, Clarke, plaintiff Syl. to run when the Pt. Hill v. diligence, ("The (1978) question exercise of know plain- reasonable should of when (2) injured, plaintiff has tiff in the dili- knows or exercise of reasonable identity entity plaintiff gence malpractice owed who reason to know of medical has care, duty jury.”). to act is for with due who have 57, 70, 426, Court, Young, 36 14 posture of this as examined W.Va. S.E. 431 above, (1892). consistently Salmons, that “it in has Accord v. 203 W.Va. State upon 561, 569, 842, (1998); a trial court to view the facts cumbent 509 850 S.E.2d Cole summary judgment light in in a 588, 601, [a motion] Sopher, v. 201 man W.Va. 499 against party to the whom most favorable (1997); 592, LaRock, S.E.2d 605 v. 196 State judgment is to be rendered.” Perrine v. 294, 316, 613, (1996); 470 635 W.Va. Inc., 562, 560, Development, Mert Ass’n, Wheeling & Loan 133 Sav. Hoffman (1987), citing 355 S.E.2d 55 Board (1950); of W.Va. 57 S.E.2d 732 Educ. the Ohio v. Van Buren Morgantown A.C. Fulmer Coal K.R. Co. & Inc., Architects, and Firestone 165 W.Va. Co., 50 S.E. 608 (1980). 440 267 S.E.2d Based (1905); Harris, Syl. pt. Holsberry v. foregoing, we reverse the lower court and (1904). W.Va. 49 S.E. We have grant this matter with to remand directions principle of law to mean that 60(b) motion, summary the Rule set aside the “careless, attorneys [do] when are not order, judgment proceed litiga with this court, in attend to their interests [do] opinion. in a tion manner consistent with this record, they watch the entries made of must Reversed and Remanded. consequences folly. It suffer the their they far better that should than that suffer DAVIS, Justice, dissenting: rights everybody placed else should be Appellees, Monongahela Company Power jeopardy.” Reitzenberger, Braden v. (hereinafter “Monongahela (1881). referred as pro In the instant W.Va. Power”), argued summary judgment ceeding, slept rights Mr. Law on his to time issues in this case should not be considered ly appeal summary judgment order en they untimely ma- because were filed. The against him. than allow Mr. tered Rather jority opinion recognized that the case had consequences” Law to “suffer the for his lack Nevertheless, problem. timeliness rather vigilance, majority opinion aban has affirming summary judgment, than principles of law. doned well-established majority opinion unmanagea- established an A. Procedural Posture of Case rule of law in order to ble address merits summary judgment of the order. Due to the granted summary judgment The trial court majority’s departure precedent, from I am Monongahela by Power order entered Jan- compelled to dissent. rules, uary 2000. Under our Mr. Law had petition four months in which to either file a longstanding legal A maxim adhered summary judgment appeal for of the order or this Court is that law comes to the “[t]he help vigilant, who and not to an extension of time within which to those are seek sleep rights.” appeal who on trial The record is those them Swann v. from the court.1 petition presented appeal appeal period 1. The is set out in W. Va.Code No shall be for an from, to, (1998) any judg- (Supp.2000) supersedeas § 58-5-4 as follows: or a writ of ment, order, decree or which shall have been petition presented appeal No for an shall rendered more than four months before such any judgment rendered more than four petition office of the clerk of the is filed petition months before such is filed with the judgment, circuit court where the decree or judgment being clerk the court where entered, Provided, being appealed order was whether the appealed was entered: That not; party provided, judge may, prior State be a thereto or of the circuit court to the months, judge good expiration period of the circuit court for of such of four shown, by prior entered record order entered of record extend and reextend cause order expiration period period period peri- of four for such additional of such such ods, months, period, not not to exceed a total extension of two extend and re-extend such months, months, shown, good request if a if the to exceed a total extension of two for cause request transcript preparation transcript for the made of the was made seeking supersedeas party seeking appellate party appeal within review within an such thirty days entry judgment, thirty days entry judgment, de- of the of such of such de- appeals from administrative cree or order. cree or order. agencies, 3(a) petition appeal be filed Rule of the West Rules of shall applicable provided language time tire Procedure tracks the of the statute within the late provides follows: statute. clear, conceded, majority opinion Cleckley correctly and the has tice observed Powder petition idge Highland Props., that Mr. Law failed file Ass’n v. Unit Owners Ltd., appeal with- order Additionally, weight authority supports the four month time frame. that “the majority opinion that Mr. view that concedes Law motions which seek merely relitigate legal an

did not seek extension of time within issues heard appeal ruling. underlying proceeding from the trial court’s which are without merit.... 60(b) Rather, words, appealing summary instead of the In other a Rule motion to recon order, judgment simply opportunity Mr. Law a motion for not an reargue filed sider reconsideration with the trial court on Janu- facts and theories which a court has ary already Powderidge, 2000. The trial court denied ruled.” at the 196 W.Va. 705-706, Moreover, September for on motion reconsideration S.E.2d at 885-886. 60(b) summary judg- “[i]t 2000—nine months after the also that a established Rule present ment order had been entered. Mr. Law motion does forum for the January appealed thereafter the consideration of or- evidence which was available summary granting judgment der original summary judg Monon- but not offered at the gahela Powderidge, Power. motion.” ment W.Va. 706, 474 S.E.2d at 886.

B. Motion for Reconsideration Here, majority opinion has done exact- majority’s Prior to the decision ly Powderidge rejected. what majority case, holding our law had clear in reversed the trial court’s decision revisit- qualify motion which would “[a] otherwise ing 59(e) summary judg- matters decided a Rule motion that is not filed and majority ment order. The did so because the days entry judg- served within ten of 60(b) properly Rule motion was not 60(b) framed. regardless is a ment Rule motion Contrary Powderidge, to our instruction in styled how and does not toll the four month 60(b) simply sought Mr. Law’s motion appeal period appeal Syl. to this court.” relitigate upon by issues that had been ruled pt. Lieving Hadley, 188 W.Va. (1992). summary judgment the circuit court at the S.E.2d 600 Mr. Law filed his motion proceeding, or that pre- should have been days for reconsideration more than ten after sented the circuit court at that time. As a summary judgment order was entered.2 consequence majority’s improper con- Consequently, motion had to be treated issues, 60(b) summary judg- sideration of such no as a motion. Rule expiration ment order will be final after the 60(b) considering When Mr. Law’s Rule Indeed, appeal period. the four month motion, majority bound, opinion 60(b) litigants may now file Rule motions precedent, to consider neither the substance seeking every reconsideration of issue summary of the issues judg- decided has been or should have been decided ment nor order issues which should have summary judgment. Today’s decision cre- during summary judgment been raised ates chaos for orders. It proceeding. appeal “An of the denial of a 60(b) has also transformed Rule into a mech- 60(b) brings Rule to consideration for anism with which any to attack the merits only review order denial itself and not appeal final for which period order has supporting underlying the substance expired. judgment nor judgment the final order.” Shelton, Syl. pt. Toler This simple was a case should have added). (Emphasis plaintiffs lawyer Jus- been affirmed. “The should M., Carolyn 2. Had Mr. Law filed his motion for reconsidera- 193 W.Va. days entry tion within ten circuit court’s we "[a] motion recon granting summary judgment, days its judgment order run- sideration filed within ten be ning appeal ing suspends finality of the time to judgment substantive issues entered summary judg- judgment unripe appeal. addressed connection with the and makes the extended, pending entry appeal ment would have been halted of When the time for is so its full length begins entry the circuit court's order on the motion for recon- to run from the date of disposing sideration. 7 of James M.B. v. order of the motion.” order, judge’s appealed the or immedi have

ately a motion 59 of under Rule filed

West Rules of Civil Procedure.” Found., Inc., Hosp.

Rose v. Thomas Mem’l 406, 415-16, 541 10-11

(2000) (Starcher, J., major concurring). The

ity opinion simple has turned a into a case decision,

procedural majority monster. The effect, has transformed into Rule 59(e). I agree cannot with a re such saying goes,

sult. “As the if it like a looks

duck, quacks walks like duck and like a

duck, probably it most ais duck.” Adkins v. Virginia Dept. of Educ., J., (Albright,

dissenting).

Therefore, respectfully I I am dissent.

authorized state that MAYNARD Justice

joins dissenting opinion. in this me WOLFE, Petersburg

Keith dba Company,

Motor Plaintiff

Below, Appellee, Jr., WELTON, C.

John Defendant

Below, Appellant.

No. 29696.

Supreme Appeals Virginia. Court of of West

Submitted Oct. 2001.

Decided Dec.

Concurring Opinion of Chief Justice

McGraw Jan.

Case Details

Case Name: Law v. Monongahela Power Co.

Court Name: West Virginia Supreme Court

Date Published: Dec 12, 2001

Citation: 558 S.E.2d 349

Docket Number: 29179

Court Abbreviation: W. Va.