Sarah L. Birchfield v. Zen's Development, LLC, Uptown Properties, LLC, & Kenneth W. McBride, Jr.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2021 Term
_______________
No. 20-0075 FILED
_______________ April 16, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SARAH L. BIRCHFIELD, SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Petitioner
v.
ZEN’S DEVELOPMENT, LLC,
UPTOWN PROPERTIES, LLC, &
KENNETH W. MCBRIDE, JR.,
Respondents
____________________________________________________________
Appeal from the Circuit Court of Raleigh County
The Honorable Darl W. Poling, Judge
Civil Action No. 15-C-733
AFFIRMED
__________________________________________________________
Submitted: March 17, 2021
Filed: April 16, 2021
Mark A. Sadd, Esq. J. Victor Flanagan, Esq.
Angela C. Ramsey, Esq. Daniel J. Burns, Esq.
Lewis Glasser PLLC Pullin, Fowler, Flanagan,
Charleston, West Virginia Brown & Poe, PLLC
Counsel for Petitioner Beckley, West Virginia
Counsel for Respondent,
Zen’s Development, LLC
Chip E. Williams, Esq. Gerald Hayden, Esq.
Jared C. Underwood, Esq. Hayden & Associates, LC
Pullin, Fowler, Flanagan, Beckley, West Virginia
Brown & Poe, PLLC Counsel for Respondent,
Beckley, West Virginia Kenneth W. McBride, Jr.
Counsel for Respondent,
Uptown Properties, LLC
JUSTICE ARMSTEAD delivered the Opinion of the Court.
JUSTICE HUTCHISON, deeming himself disqualified, did not participate in the decision
of this case.
JUDGE THOMAS H. EWING, sitting by temporary assignment.
SYLLABUS BY THE COURT
1. “Summary judgment is appropriate if, from the totality of the
evidence presented, the record could not lead a rational trier of fact to find for the
nonmoving party, such as where the nonmoving party has failed to make a sufficient
showing on an essential element of the case that it has the burden to prove.” Syl. Pt. 2,
Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).
2. “A circuit court’s entry of summary judgment is reviewed de novo.”
Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
3. “Party walls are as a general rule the subject of agreement, express or
implied, between adjoining owners.” Syl. Pt. 1, Gates v. Friedman, 83 W. Va. 710, 98 S.E.
892 (1919).
4. “‘It is not the right or province of a court to alter, pervert or destroy
the clear meaning and intent of the parties as expressed in unambiguous language in their
written contract or to make a new or different contract for them.’ Cotiga Development Co.
v. United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 3.” Syl. Pt.
2, Bennett v. Dove, 166 W. Va. 772, 277 S.E.2d 617 (1981).
5. In the absence of a contractual duty addressing the removal of a
building attached to a party wall, the owner of a building sharing a party wall may remove
his building without liability to the adjoining owner so long as the owner 1) provides notice
of the removal to the adjoining owner, 2) uses reasonable care to protect the structural
integrity of the party wall, and 3) avoids damage to the adjoining owner’s building resulting
from the removal.
6. In the absence of a contractual duty addressing the removal of a
building attached to a party wall, an owner who removes a building attached to a party wall
does not have a duty to protect the party wall against the elements.
7. “Assignments of error that are not argued in the briefs on appeal may
be deemed by this Court to be waived.” Syl. Pt. 6, Addair v. Bryant, 168 W. Va. 306, 284
S.E.2d 374 (1981).
8. “An order denying a motion for summary judgment is merely
interlocutory, leaves the case pending for trial, and is not appealable except in special
instances in which an interlocutory order is appealable.” Syl. Pt. 8, Aetna Cas. & Sur. Co.
v. Fed. Ins. Co. of NY, 148 W. Va. 160, 133 S.E.2d 770 (1963).
ARMSTEAD, Justice:
This appeal concerns a party wall agreement between adjoining property
owners in Beckley, West Virginia. Petitioner, Sarah L. Birchfield (“Petitioner”), owns a
commercial building that shares a party wall with the adjacent property. The three
Respondents, Zen’s Development, LLC (“Respondent Zen’s”), Uptown Properties, LLC
(“Respondent Uptown”), and Kenneth McBride, Jr. (“Respondent McBride”), are the
current or previous owners of the adjacent property. Petitioner’s lawsuit against these three
Respondents included claims for negligence and breach of the party wall agreement. The
circuit court granted summary judgment to all three Respondents on the breach of the party
wall agreement claim, and it granted summary judgment to Respondent Uptown and
Respondent McBride on Petitioner’s negligence claim.
On appeal, Petitioner raises eleven assignments of error contesting the circuit
court’s ruling granting summary judgment in favor of Respondents. After review, and for
the reasons explained herein, we affirm the judgment of the circuit court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner purchased a commercial building located at 322 Neville Street in
Beckley, West Virginia, in August of 2007. Petitioner’s property is referred to as “Lot 4.”
The adjacent property on Neville Street, referred to as “Lot 5,” was owned by Respondent
McBride when Petitioner purchased Lot 4. These two properties shared a common wall
(“party wall”).
1
A party wall agreement was established through a June 12, 1919, deed
between the then-owners of Lot 4 and Lot 5. It provides, in relevant part,
the said first party [owner of Lot 4] does hereby Give, grant
and sell unto the said second party [owner of Lot 5] one-half
of said 18[-]inch wall and the strip of land on which it is being
built, with the right to join to said wall and to the use of said
wall as a party wall.
Mable L. Ross [owner of Lot 5] is to build front pier on
her side of division line to support front of building. The said
wall is 74 feet long, 18 inches thick to top of first story, which
is to be high enough so that store room on first floor will be 14
feet from floor to ceiling, to be built of stone, of good
workmanship and a good substantial wall; and the second story
or remainder of said wall is to be brick 15 inches thick and built
on center line and high enough so that rooms on second floor
of said building will be 9 feet from floor to ceiling, with proper
heigth [sic] above roof.
The wall to be a party wall and as such to be part of each
building (when building is erected on lot 5) and the title to
which shall pass by deed to each of said lots.
It is undisputed that the party wall agreement 1) runs with the land, 2) has
not been terminated, and 3) remains in effect. The party wall agreement is silent as to any
obligations each party has regarding the wall’s maintenance, care, and upkeep. Further,
the party wall agreement does not address what responsibilities or duties an owner has in
the event that one of the buildings connected to the party wall is destroyed.
In February of 2008, a fire significantly damaged the building on Lot 5,
which was owned at that time by Respondent McBride. Petitioner stated that she received
a call on the night of the fire letting her know that it had occurred. Upon arriving at her
building the next day, Petitioner stated that her basement was “flooded. There was water
2
everywhere; it looked like a warzone.” Petitioner hired a contractor to remove the water
from her basement. She stated that she did not contact her insurance company after the fire
because she felt her contractor could make the repairs, and that she did not need to file a
claim.
The building on Lot 5 was demolished a short time after the fire occurred.
Respondent McBride removed the debris from Lot 5, leaving the party wall exposed.
Petitioner stated that she witnessed the removal of the debris on Lot 5: “I saw dump trucks,
excavators. It wasn’t a small cleanup crew in there.” After the debris was removed,
Respondent McBride sold Lot 5 to Respondent Uptown in July of 2008.
Upon acquiring Lot 5, Respondent Uptown built an outdoor elevated wood
patio deck for its restaurant that was located on Lot 6. The elevated patio deck was attached
to the party wall on Lot 4. On December 13, 2012, Harper Rentals, Inc. 1 acquired Lot 5
from Respondent Uptown, and removed the patio deck from the party wall. On December
15, 2015, Harper Rentals, Inc. conveyed Lot 5 to Respondent Zen’s. Respondent Zen’s,
the current owner of the property, excavated and paved Lot 5.
Petitioner filed her initial complaint on July 30, 2015, against three
defendants 2 alleging tortious interference with a business relationship, and breach of the
Harper Rentals, Inc. was initially named as a defendant in this matter. It entered
1
into a settlement agreement with Petitioner, and is no longer a party in this case.
These three defendants were Matthew Bickey, Mine Power Systems, Inc., and
2
Harper Rentals, Inc. None of these defendants remain in this case.
3
party wall agreement. Petitioner filed an amended complaint in 2017 in which she named
the three current Respondents, and alleged three causes of action: 1) tortious interference
with a business relationship, 3 2) breach of the party wall agreement, and 3) negligence.
Regarding the breach of the party wall agreement, Petitioner’s amended
complaint provides
[e]ach of the Defendants had or has a contractual duty to the
Plaintiff to maintain the integrity [sic] Plaintiff [and
Defendants have] a contractual duty to each other to maintain
said wall. . . . The Plaintiff has been materially, substantially[,]
and continuously damaged, and has otherwise been harmed as
a result of the Defendants’ breach of contract of the Party Wall
Agreement. The Plaintiff continues to suffer damages to Lot 4
because of the failure of each of the Defendants to perform his
or its obligations under the Party Wall Agreement.
(Emphasis added).
Petitioner’s negligence claim provides that all three Respondents had a duty
to Petitioner to maintain the party wall, and not to negligently damage it. Petitioner alleged
that each of the Respondents breached this duty, causing her to suffer damages:
“[Petitioner] continues to suffer damages to Lot 4 because of the failure of each of the
Defendants to maintain the party wall and not to negligently damage it.” 4
3
The circuit court granted summary judgment to Respondents on the tortious
interference with a business relationship claim. Petitioner has not appealed that ruling.
4
Petitioner retained an expert who stated that Petitioner’s basement on Lot 4 had
continually filled with water since the building on Lot 5 had been demolished in 2008.
This expert also stated that the party wall was damaged by its exposure to the elements
following the removal of the building on Lot 5.
4
Following initial discovery, the circuit court issued a ruling in December of
2018 that 1) granted summary judgment in favor of Respondent McBride and Respondent
Uptown on Petitioner’s negligence claim, and 2) found that liability on the breach of the
party wall agreement would be determined at trial. The circuit court’s ruling on the issue
of negligence explained that “[t]he undisputed evidence is that the Plaintiff knew of the
damages prior to July 30, 2013. The statute of limitations on a negligence claim is two (2)
years. It is clear that the Plaintiff failed to file her claim of negligence within the allotted
timeframe under the statute” 5 as to Respondent McBride and Respondent Uptown.
Respondent McBride sold Lot 5 in 2008. Respondent Uptown sold Lot 5 in 2012.
Petitioner’s lawsuit was not filed until July of 2015. The circuit court determined that
Petitioner’s negligence claim against Respondent Zen’s could proceed to trial.
5
W. Va. Code § 55-2-12 (1959) provides:
Every personal action for which no limitation is
otherwise prescribed shall be brought: (a) Within two years
next after the right to bring the same shall have accrued, if it be
for damage to property; (b) within two years next after the right
to bring the same shall have accrued if it be for damages for
personal injuries; and (c) within one year next after the right to
bring the same shall have accrued if it be for any other matter
of such nature that, in case a party die, it could not have been
brought at common law by or against his personal
representative.
5
Shortly after the circuit court’s December 2018 ruling was entered, a new
circuit court judge was assigned to this case. 6 The case was scheduled for trial on January
27, 2020, and the parties filed renewed motions for summary judgment in November and
December of 2019. The circuit court’s December 13, 2019, order addressing these motions
mainly involved two issues: the remaining negligence claim against Respondent Zen’s, and
the breach of the party wall agreement claim that remained against all three Respondents.
Both Petitioner and Respondent Zen’s filed summary judgment motions on
the remaining negligence claim. The circuit court denied both of these motions, ruling that
“the issue of whether Zen’s actions in grading the vacant lot and its actions after taking
ownership of the lot are questions of fact that must be addressed at trial.”
The circuit court granted summary judgment in favor of all three
Respondents on the breach of the party wall agreement claim. The circuit court concluded
that “there are no statutes in West Virginia pertaining to party walls, [and] the case law in
West Virginia dealing with party wall rights and duties is limited. Therefore, the Court
was required to look to other jurisdictions for guidance in determining the governing law
in this case.” The circuit court concluded that absent contractual duties, a party can remove
its building subject to a party wall agreement when 1) notice is provided, 2) reasonable
6
Justice John A. Hutchison, then serving as a circuit court judge, presided over this
matter in December of 2018 when the circuit court entered its order on the parties’ various
motions for summary judgment. After Justice Hutchison began serving on the West
Virginia Supreme Court of Appeals, Circuit Court Judge Darl W. Poling presided over this
case.
6
care is taken to protect the structural integrity of the party wall, and 3) the removal does
not damage the adjoining building and its contents. The circuit court noted that Petitioner
had not alleged that she was damaged “by the failure of any Defendant to provide notice
of the intended removal of the burned building.” While the circuit court found that there
was a question of fact regarding “whether a party has exercised reasonable care in the
removal of its building from the party wall,” it noted that the only party that Petitioner had
asserted a timely negligence claim against was Respondent Zen’s. Since the removal of
the debris took place years before Respondent Zen’s acquired Lot 5, the circuit court
determined that any issue regarding the demolition and removal of the debris was moot.
The circuit court also ruled, relying on caselaw from other jurisdictions, that after the
building on Lot 5 was destroyed, Respondents did not have a duty to protect the party wall
from the elements.
After entry of the circuit court’s order, Petitioner filed a “Rule 60(b) Motion
for Relief from Judgment or, in the Alternative, motion to Certify Questions.” The circuit
court denied this motion by order entered on January 6, 2020. Petitioner subsequently filed
the present appeal. 7
7
While Petitioner’s negligence claim against Respondent Zen’s remains pending
for trial, the circuit court’s order denying the motion for relief from judgment provided,
[t]he Court further concludes that the appropriate process of
addressing this Court’s adverse ruling is to appeal the matter to
the West Virginia Supreme Court of Appeals on appropriate
issues that are appealable. Accordingly, the Court concludes
(continued . . .)
7
II. STANDARD OF REVIEW
This appeal requires us to examine the circuit court’s ruling granting
summary judgment in favor of Respondents. We have held that “[a] circuit court’s entry
of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189,
451 S.E.2d 755 (1994). Further,
[s]ummary judgment is appropriate if, from the totality of the
evidence presented, the record could not lead a rational trier of
fact to find for the nonmoving party, such as where the
nonmoving party has failed to make a sufficient showing on an
essential element of the case that it has the burden to prove.
Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).
III. ANALYSIS
Two main issues are raised in this appeal: the circuit court’s ruling granting
summary judgment to all three Respondents on the breach of the party wall agreement
claim, and its ruling granting summary judgment to Respondent McBride and Respondent
Uptown on the negligence claim. Our review will consist of 1) a general discussion of the
assignments of error raised by Petitioner; 2) the circuit court’s ruling on the breach of the
party wall agreement claim; and 3) the circuit court’s ruling on the negligence claim.
that this action should be stayed at this time pending a decision
of the West Virginia Supreme Court of Appeals[.]
8
Petitioner raises eleven assignments of error in her brief to this Court. 8
However, we decline to address the majority of these assignments of error individually
8
The eleven assignments of error are as follows:
1. The Circuit Court erred when it concluded: “Since there are no statutes in
West Virginia pertaining to party walls, the case law in West Virginia dealing
with party wall rights and duties is limited. Therefore the Court was required
to look to other jurisdictions for guidance in determining the governing law
in this case.”
2. The Circuit Court erred when, in adopting party wall duties from Kansas
and Washington State for the common law of West Virginia and then
applying them in this case, it conflated two separate and distinct party wall
duties expressed in those jurisdictions into a single duty.
3. The Circuit Court erred when it found that the party wall in the instant case
is not structural because Petitioner’s uncontested expert testimony is that the
party wall is structural.
4. The Circuit Court erred when it concluded that the burning of a building
subject to party wall servitudes as a matter of law fulfills that building
owner’s the [sic] duty to “give notice of the intended removal” of his building
to the other party wall owner.
5. The Circuit Court erred when it found that “[i]n the present case, the
Plaintiff has failed to identify the party or person(s) that undertook the
removal of the damaged building on the Defendants’ side of the party wall.”
6. The Circuit Court erred when it entered summary judgment in favor of
Respondent McBride whether (1) McBride “use[d] reasonable care to protect
the structural integrity of the party wall” and (2) McBride “avoid[ed] damage
to the adjoining owner’s building resulting from the removal” because the
lower court had not heard the testimony of Petitioner’s expert witness.
7. The Circuit Court erred when it failed to enter summary judgment in favor
of Petitioner whether Respondent McBride (1) “use[d] reasonable care to
protect the structural integrity of the party wall” and (2) “avoid[ed] damage
(continued . . .)
9
to the adjoining owner’s building resulting from the removal” – embracing
two separate and distinct party wall duties – because the testimony of
Petitioner’s expert witness on these two matters of scientific opinion is
undisputed.
8. The Circuit Court erred when it entered summary judgment in favor of
Respondents McBride and Uptown Properties on Petitioner’s negligence
claim on the incorrect finding that those Defendants had no duty to Petitioner
to protect Respondents’ one half of the party wall from the elements and thus
ultimate failure and collapse.
9. The Circuit Court erred when it entered summary judgment in favor of
Respondents McBride, Uptown Properties and Zen’s Development on
Petitioner’s party wall claim on the incorrect finding that those Respondents
had no duty to Petitioner to protect Respondents’ one half of the party wall
from the elements and thus from failure and ultimate collapse.
10. The Circuit Court erred when it failed to find prima facie negligence by
each of Respondents because of their violations of the Ordinances of the city
of Beckley, West Virginia, including the following:
a. Section 3303.4 Vacant lot. Where a structure has been demolished or
removed, the vacant lot shall be filled and maintained to the existing grade
or in accordance with the ordinances of the jurisdiction having authority.
b. Section 3303.5 Water Accumulation. Provision shall be made to prevent
the accumulation of water or damage to any foundations on the premises or
the adjoining property.
c. Section 3307.1 Protection required. Adjoining public and private property
shall be protected from damage during construction, remodeling and
demolition work. Protection shall be provided for footings, foundations,
party walls, chimneys, skylights and roofs. Provisions shall be made to
control water runoff and erosion during construction or demolition activities.
. . [Written notice shall be given to the “owners of adjoining buildings”].
d. Section 1502.1 Protection Required. Adjoining public and private property
shall be protected from damage during construction and demolition work.
Protection must be provided for footings, foundations, party walls, chimneys,
(continued . . .)
10
because they do not comply with our rules of appellate procedure. Specifically, the
majority of the assignments of error do not include any citation to legal authority or
pinpoint citation to the appendix record. 9
Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires
that
[t]he brief must contain an argument exhibiting clearly the
points of fact and law presented, the standard of review
applicable, and citing the authorities relied on . . . [and] must
contain appropriate and specific citations to the record on
appeal, including citations that pinpoint when and how the
issues in the assignments of error were presented to the lower
tribunal. The Court may disregard errors that are not
adequately supported by specific references to the record on
appeal.
skylights and roofs. Provisions shall be made to control water runoff and
erosion during construction or demolition activities. The person making or
causing an excavation to be made shall provide written notice to the owners
of adjoining building advising them that the excavation is to be made and
that the adjoining buildings should be protected. Said notification shall be
delivered not less than 10 days prior to the scheduled starting date of the
excavation.
11. The Circuit Court erred when it entered summary judgment in favor of
Respondents McBride and Uptown Properties on whether they acted
reasonably in directing or permitting surface water to flow into the
Petitioner’s building on the adjoining lot.
9
Petitioner’s assignments of error two, four, and five do not include any pinpoint
citation to the appendix record, nor do they include citation to specific legal authority.
Assignments of error six, seven, eight, and nine are addressed in combination in seven
sentences that do not include any pinpoint citation to the appendix record. The only legal
authority mentioned in these seven sentences is a general reference to Rule 56 of the West
Virginia Rules of Civil Procedure. Assignments of error ten and eleven do not include any
pinpoint citation to the appendix record.
11
(Emphasis added).
Additionally, in an Administrative Order entered by this Court on December
10, 2012, Re: Filings That Do Not Comply With the Rules of Appellate Procedure, we
noted that “[b]riefs that lack citation of authority [or] fail to structure an argument applying
applicable law” are not in compliance with this Court’s rules. Further, “[b]riefs with
arguments that do not contain a citation to legal authority to support the argument presented
and do not ‘contain appropriate and specific citations to the record on appeal . . .’ as
required by rule 10(c)(7)” are not in compliance with this Court’s rules. Id.
This Court has repeatedly emphasized that issues that are not supported with
pertinent authority will not be considered on appeal. 10 While Petitioner raises eleven
assignments of error, we find that the crux of this appeal involves the circuit court’s ruling
10
This Court has ruled that “[i]n the absence of supporting authority, we decline
further to review [these] alleged error[s] because [they] have not been adequately briefed.”
State v. Allen, 208 W. Va. 144, 162, 539 S.E.2d 87, 105 (1999). Additionally, in State,
Department of Health v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833
(1995), we stated “‘[a] skeletal “argument,” really nothing more than an assertion, does not
preserve a claim. . . . Judges are not like pigs, hunting for truffles buried in briefs.’”
(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)). Moreover, this Court
has determined that “[a]lthough we liberally construe briefs in determining issues presented
for review, issues . . . mentioned only in passing but are not supported with pertinent
authority, are not considered on appeal.” State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d
613, 621 (1996). Accord State v. Adkins, 209 W. Va. 212, 216 n. 5, 544 S.E.2d 914, 918 n.
5 (2001); State v. Easton, 203 W. Va. 631, 642 n. 19, 510 S.E.2d 465, 476 n. 19 (1998);
State v. Lilly, 194 W. Va. 595, 605 n. 16, 461 S.E.2d 101, 111 n. 16 (1995) (noting that
“appellate courts frequently refuse to address issues that appellants . . . fail to develop in
their brief.”).
12
on Petitioner’s breach of the party wall agreement claim and on the negligence claim. We
address these issues below.
The circuit court granted summary judgment to all three Respondents on
Petitioner’s breach of the party wall agreement claim. Petitioner argues that the circuit
court’s ruling was erroneous because it treated the breach of the party wall claim as a
contract claim, rather than as a tort claim. By contrast, Respondents argue that the breach
of the party wall agreement dispute is a contract claim, not a tort-based claim.
The circuit court analyzed the parties’ duties under the written party wall
agreement contained in the 1919 deed, and treated the breach of the party wall claim as a
contract claim. We find that the circuit court’s analysis is consistent with our caselaw on
party wall agreements, and the plain language of Petitioner’s amended complaint.
This Court has ruled that “[a] party wall, in the legal sense of the term, can
only exist in one of two ways: either by contract or by statute; for the common law creates
no such right.” List v. Hornbrook, 2 W. Va. 340, 342 (1867). West Virginia does not have
a party wall statute, thus, the only way a party wall agreement can exist in West Virginia
is pursuant to a contract. Consistent with our ruling in List, this Court has held that “[p]arty
walls are as a general rule the subject of agreement, express or implied, between adjoining
owners.” Syl. Pt. 1, Gates v. Friedman, 83 W. Va. 710, 98 S.E. 892 (1919). The party wall
agreement in the present case exists pursuant to a written contract, the 1919 deed.
In Petitioner’s amended complaint, she asserted separate claims for breach
of the party wall agreement and negligence. In her breach of the party wall agreement
13
claim, Petitioner alleged that Respondents breached a contractual duty under the party wall
agreement. The amended complaint unambiguously sets forth that this is a contract claim:
[e]ach of the Defendants had or has a contractual duty to the
Plaintiff to maintain the integrity [sic] Plaintiff [and
Defendants have] a contractual duty to each other to maintain
said wall. . . . The Plaintiff has been materially, substantially[,]
and continuously damaged, and has otherwise been harmed as
a result of the Defendants’ breach of contract of the Party Wall
Agreement.
(Emphasis added).
Based on the foregoing, we reject Petitioner’s argument that the circuit court
erred by treating the breach of the party wall agreement claim as a contract claim. The
party wall agreement in this case is set forth in a written contract and Petitioner clearly
asserted that the breach of this agreement was a breach of contract.
Further, we find that the circuit court did not err by granting summary
judgment to Respondents on the breach of the party wall contract claim. “A claim for
breach of contract requires proof of the formation of a contract, a breach of the terms of
that contract, and resulting damages.” Sneberger v. Morrison, 235 W. Va. 654, 669, 776
S.E.2d 156, 171 (2015). The party wall agreement is silent as to any obligations each party
had regarding the wall’s maintenance, care, and upkeep. Further, the party wall agreement
does not address what responsibilities a party has in the event that one of the buildings
connected to the party wall is destroyed. We conclude that Petitioner has failed to
adequately allege, much less establish, any evidence demonstrating that Respondents
breached a term contained in the party wall agreement. Accordingly, we agree with the
14
circuit court’s ruling granting summary judgment to Respondents on Petitioner’s breach of
the party wall agreement claim. To find otherwise would require this Court to add terms
to the party wall agreement that it does not contain. As this Court has often observed, “‘[i]t
is not the right or province of a court to alter, pervert or destroy the clear meaning and
intent of the parties as expressed in unambiguous language in their written contract or to
make a new or different contract for them.’ Cotiga Development Co. v. United Fuel Gas
Co., 147 W. Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 3.” Syl. Pt. 2, Bennett v. Dove,
166 W. Va. 772, 277 S.E.2d 617 (1981).
Next, we address Petitioner’s negligence claim. We note at the outset that
the circuit court determined that the negligence claim as to Respondent McBride and
Respondent Uptown was untimely. We agree with this ruling and will address it below.
However, having found the absence of an enforceable contractual duty, we begin by
examining the two main issues raised in this case, namely: 1) what obligations does a party
have when removing a building that was attached to a party wall, and 2) whether a party
that has removed a building attached to a party wall has an obligation to protect the party
wall from the elements. Petitioner argues that the circuit court’s resolution of these issues
was erroneous because it improperly relied on cases outside of our jurisdiction, crafted
rules based on these cases, and incorrectly applied these rules to the facts of this case. 11
11
Petitioner’s arguments on these issues are intermingled with her arguments
asserting that the circuit court erred by treating the breach of the party wall claim as a
contract claim. We find that these issues are primarily relevant to Petitioner’s negligence
claim, and therefore include them in our discussion of the negligence claim.
15
The circuit court noted that neither the party wall agreement at issue, nor
West Virginia caselaw, addresses these two issues. While acknowledging that the party
wall agreement is silent on both of these issues, Petitioner asserts that “[i]n West Virginia,
if a contract creating a party wall relationship is silent on rights or duties then West Virginia
courts have supplied them.” Thus, Petitioner is critical of the circuit court’s reliance on
cases from outside of our jurisdiction that have directly addressed the two main issues
herein. 12
We find no error in the circuit court’s reliance on cases from outside of our
jurisdiction. While Petitioner cites a number of cases from West Virginia that concern
party walls, none of these cases directly address the rights, duties, and obligations of a party
12
While Petitioner asserts that the circuit court erred by relying on cases from other
jurisdictions, we note that in Petitioner’s August 27, 2018, motion for partial summary
judgment before the circuit court, she cited, argued, and provided the court with copies of
cases from Tennessee, Indiana, the Third Circuit, and the U.S. District Court of Appeals
for the Eastern District of Pennsylvania. After one Respondent argued that these cases
were non-binding on the circuit court, Petitioner’s reply brief provided as follows:
Plaintiff replies that these cases absolutely should guide this
Court in granting Plaintiff summary judgment because those
cases are natural and logical articulations of West Virginia’s
ancient recognition of the general principles of party walls
stated in its own common law. It just happens that there does
not exist a case on point in West Virginia’s jurisprudence.
(Emphasis added). Likewise, Petitioner relies on cases from outside of our jurisdiction in
the section of her brief to this Court in which she asserts that the circuit court erred by
relying on cases from outside of our jurisdiction.
16
to a party wall agreement concerning the removal of a building attached to a party wall, or
a party’s duty to protect the party wall from the elements after the building is removed. 13
Due to this lack of relevant authority in West Virginia, the circuit court relied
on a Kansas case that directly addressed whether a party may remove a building attached
to a party wall, what duties the party owes once he undertakes such removal, and whether
the party has a duty to protect the party wall from the elements once the building is
removed. In Lambert v. City of Emporia, 616 P.2d 1080 (Kan.1980), the Kansas court
13
Petitioner relies on syllabus point two of A.W. Cox Department Store v. Solof, 103
W. Va. 493, 138 S.E. 453 (1927), in which this Court held that a party wall agreement
“must be construed with reference to the conditions in and the construction of the building
at the time the party wall agreement was made.” This case does not provide guidance on
the party wall issues raised herein. Additionally, Petitioner relies on Gates, in which this
Court held,
[w]here a party wall so exists, either of the owners has the right
to enter upon it for the purpose of building up, extending or
repairing said wall for his building, if it can be done without
injury to the adjoining building and said wall is clearly of
sufficient strength to bear the additional burden, unless he is
restrained by the provisions of his contract or deed.
Syl. Pt. 3, 83 W. Va. 710, 98 S.E. 892. Again, this case does not address the party wall
issues raised herein. Petitioner cites two other West Virginia cases, Johnson v. Chapman,
43 W. Va. 639, 28 S.E. 744 (1897), and Mutual Improvement Company v. Merchant’s &
Business Men’s Mutual Fire Insurance Company, 112 W. Va. 291, 164 S.E. 256 (1932).
The rights, duties, and obligations of the parties to the party wall agreement were not at
issue in the Johnson case. In fact, the Court in Johnson only makes two references to a
party wall agreement. The issue in Mutual Improvement was the enforceability of an
arbitration provision under an insurance policy. The Court’s ruling in Mutual Improvement
does not resolve the party wall issues raised in the present case.
17
examined legal treatises and caselaw from numerous jurisdictions that addressed these
issues. The Lambert court determined that:
Cases uniformly hold that the owner of a building
sharing a party wall may remove his building without liability
to the adjoining owner so long as he gives notice of the removal
to the adjoining owner and uses reasonable care to protect the
structural integrity of the party wall and avoid damage to the
adjoining owner’s building resulting from the removal. This
rule applies even though removal of the building leaves the
party wall exposed to the elements or unsightly. Gorman v.
TPA Corporation, 419 S.W.2d 722, 724 (Ky.1967); First
Investment Co. v. State Fire Marshal, 175 Neb. 66, 77, 120
N.W.2d 549 (1963); Zaras v. City of Findlay, 112 Ohio App.
367, 382-383, 176 N.E.2d 451 (1960); Thompson v. DeLong,
Appellant, 267 Pa. 212, 110 A. 251, 9 A.L.R. 1326 (1920);
Cameron v. Perkins, 76 Wash. 2d 7, 15-16, 454 P.2d 834
(1969); 2 Thompson on Real Property s 402, p. 596 (1980); 60
Am.Jur.2d, Party Walls s 30, p. 297. Cf. Third National Bank
v. Goodlett Realty Co., 58 Tenn. App. 48, 60-61, 425 S.W.2d
783 (1967) (removal of building damaged party wall and
liability ensued). The purpose of giving notice is to enable the
adjoining owner to look to his own protection. Gorman v. TPA
Corporation, 419 S.W.2d at 724; Zaras v. City of Findlay, 112
Ohio App. at 382, 176 N.E.2d 451.
616 P.2d at 1083.
Additionally, the circuit court relied on a case from Washington State that
addressed whether an owner who removes a building has a duty to protect the party wall
from the elements once the building is removed. Cameron v. Perkins, 454 P.2d 834 (Wash.
1969). The circuit court noted that the court in Cameron relied on caselaw from Michigan,
Iowa, Utah, New York, Virginia, and Nebraska, as well as legal treatises, and concluded
that “[o]ne removing a building is under no obligation to protect a party wall against rain
18
nor is he required to protect the wall by permanently covering it against the elements.” Id.
at 840 (quoting 2 Thompson on Real Property, § 403 at 629 (1961)).
Because West Virginia does not have any statutes or caselaw that directly
addresses these issues, we find that the circuit court did not err by relying on Lambert or
Cameron as persuasive authority. Consistent with the rule set forth in Lambert, 14 the circuit
court determined, and we now hold, that in the absence of a contractual duty addressing
the removal of a building attached to a party wall, the owner of a building sharing a party
wall may remove his building without liability to the adjoining owner so long as the owner
1) provides notice of the removal to the adjoining owner, 2) uses reasonable care to protect
the structural integrity of the party wall, and 3) avoids damage to the adjoining owner’s
building resulting from the removal. We also hold, consistent with the rule set forth in
Cameron, 15 that in the absence of a contractual duty addressing the removal of a building
attached to a party wall, an owner who removes a building attached to a party wall does
not have a duty to protect the party wall against the elements.
14
See also J.P. Asset Co., Inc. v. City of Wichita, 70 P.3d 711 (Kan. 2003)
(disapproved of on other grounds by, Cummings v. City of Lakin, 80 P.3d 356 (Kan. 2003));
Gorman v. TPA Corp., 419 S.W.2d 722 (Ky. 1967); Salvation Army v. Kyle, 778 N.W.2d
485 (Neb. App. 2009).
15
See 59A Am. Jur. 2d Party Walls § 49 (2021) (footnotes omitted) (“The general
rule requiring only notice and due care for the removal or demolition of a building which
abuts a party wall, as between the party wall owners, governs even though the removal
leaves the wall unprotected, exposed to the elements, or unsightly. There is no liability for
the mere exposure of a party wall, so a landowner who demolishes his or her building and
replaces it with a lower building need not protect the exposed portion of the party wall
from rain or snow.”).
19
When applying these holdings to the instant case, the circuit court noted that
Petitioner had not alleged that she was damaged “by the failure of any Defendant to provide
notice of the intended removal of the burned building.” We agree. Respondent McBride
could not have provided notice of the initial destruction of his building because the building
was destroyed by an accidental fire. Further, Petitioner testified that she was aware of the
fire that damaged the building on the night that it occurred, and was aware of the water
intrusion into her building the next morning. Also, Petitioner testified that she was aware
of the debris removal from Lot 5 while it was occurring. Therefore, we agree with the
circuit court’s conclusion that notice was not an issue in this case.
While the circuit court found that there was a question of fact regarding
“whether a party has exercised reasonable care in the removal of its building from the party
wall,” it noted that the only party that Petitioner had asserted a timely negligence claim
against was Respondent Zen’s. Since the removal of the debris took place years before
Respondent Zen’s acquired Lot 5, the circuit court determined that any issue regarding the
negligent demolition and removal of the debris was moot. We agree and find that no such
claim for negligent removal of debris can be maintained against Respondent Zen’s. The
issue of whether Respondent McBride exercised reasonable care during the demolition and
removal of debris from Lot 5 is part of Petitioner’s negligence claim. As discussed in the
following section, the negligence claim asserted against Respondent McBride and
Respondent Uptown was not filed in a timely manner.
20
Next, we find that because the party wall agreement did not require either
party to protect the party wall against the elements in the event that a building that was
attached to the party wall was removed, and no such duty exists under West Virginia
common law, the circuit court correctly determined that Respondents did not owe a duty
to Petitioner to “take any steps to protect the exterior of the party wall from the elements
after the removal of the structure formerly located on their property.”
We now address the circuit court’s ruling granting summary judgment to
Respondent McBride and Respondent Uptown on the negligence claim on the basis that it
was untimely. In December of 2018, the circuit court granted summary judgment in favor
of Respondent McBride and Respondent Uptown on Petitioner’s negligence claim. The
circuit court determined that “[t]he undisputed evidence is that the Plaintiff knew of the
damages prior to July 30, 2013. The statute of limitations on a negligence claim is two (2)
years. It is clear that the Plaintiff failed to file her claim of negligence within the allotted
timeframe under the statute [W. Va. Code § 55-2-12]” as to Respondent McBride and
Respondent Uptown.
As noted by the circuit court, Respondent McBride sold Lot 5 in 2008.
Respondent Uptown sold Lot 5 in December of 2012. Petitioner did not file her lawsuit in
this matter until July of 2015. Therefore, the circuit court ruled that the negligence claims
against these two Respondents were barred by the statute of limitations.
While Petitioner asserted eleven assignments of error in her brief to this
Court, she did not allege, raise, or make any argument disputing the circuit court’s
21
December 2018 ruling that the negligence claims against Respondent McBride and
Respondent Uptown were barred by the two-year statute of limitations contained in W. Va.
Code § 55-2-12. In their briefs to this Court, Respondents McBride and Uptown noted that
Petitioner failed to contest this ruling, and asserted that it was therefore waived.
In Petitioner’s reply brief, she responded to Respondent McBride’s argument
as follows:
Respondent McBride claims that [Petitioner’s]
negligence [claim is] “time barred”. . . . Respondent McBride
has not tendered to this Honorable Court, and the agreed record
for [Petitioner’s] appeal omits, any evidence that he either (a)
made a valid and timely affirmative defense on these claimed
statutes of limitations or (b) perfected those issues for his own
cross-appeal. Thus, for this appeal, this Honorable Court may
not properly consider Respondent McBride’s arguments on the
proper statute of limitations or on its applicability to this case. 16
(Footnote added).
Similarly, Petitioner’s reply brief provides that Respondent Uptown “leans
heavily on the incorrect statute of limitations. It is not two years for damage to property,
it is ten years[.]” Petitioner’s reply brief asserts, for the first time, that a ten-year statute of
limitations applies to her negligence claims against Respondents McBride and Uptown.
While Petitioner cites a statute in support of this argument in her reply brief, W. Va. Code
16
We are perplexed by this argument and do not understand Petitioner’s assertion
that the circuit court’s ruling in favor of Respondent McBride on the negligence claim is
not properly before this Court because Respondent McBride failed to perfect the issue.
22
§ 55-2-6a (2015), 17 she does not 1) cite any caselaw explaining why this statute applies to
her negligence claim; 2) explain why the circuit court erred by relying on the two-year
statute of limitation contained in W. Va. Code § 55-2-12; or 3) explain why she did not
contest the circuit court’s December 2018 ruling applying the two-year statute of limitation
in her petition for appeal or raise this as an assignment of error in her initial brief to this
Court.
Upon review, we agree with Respondents that Petitioner has waived this
issue. The circuit court entered summary judgment in favor of Respondent McBride and
Respondent Uptown on the negligence claim on the basis that this claim was untimely.
Petitioner did not contest this ruling in her petition for appeal or in her initial brief.
West Virginia Rule of Appellate Procedure 10(c)(3) requires Petitioner to
include all assignments of error presented for review, which assignments must be
17
W. Va. Code § 55-2-6a provides:
No action, whether in contract or in tort, for indemnity or otherwise,
nor any action for contribution or indemnity to recover damages for any
deficiency in the planning, design, surveying, observation or supervision of
any construction or the actual construction of any improvement to real
property, or the actual surveying of real property, or, to recover damages for
any injury to real or personal property, or, for an injury to a person or for
bodily injury or wrongful death arising out of the defective or unsafe
condition of any improvement to real property, or the survey of real property,
may be brought more than ten years after the performance or furnishing of
the services or construction. However, the above period is tolled according
to section twenty-one of this article. The period of limitation provided in this
section does not commence until the improvement to the real property, or the
survey of the real property in question has been occupied or accepted by the
owner of the real property, whichever occurs first.
23
accompanied by “an argument exhibiting clearly the points of fact and law presented . . .
citing the authorities relied on [.]” W.V.R.A.P. 10(c)(7). This Court has repeatedly stated
that we ordinarily “will not address an assignment of error that was not raised in a petition
for appeal.” Canterbury v. Laird, 221 W. Va. 453, 458, 655 S.E.2d 199, 204 (2007); see
also Koerner v. W. Va. Dep’t of Mil. Affs. & Pub. Safety, 217 W. Va. 231, 617 S.E.2d 778
(2005) (refusing to consider an argument in Petitioner’s brief that was not assigned as error
in petition for appeal); Holmes v. Basham, 130 W. Va. 743, 45 S.E.2d 252 (1947) (same).
Additionally, “[a]lthough we liberally construe briefs in determining issues presented for
review, issues which are not raised, and those mentioned only in passing but are not
supported with pertinent authority, are not considered on appeal.” LaRock, 196 W. Va. at
302, 470 S.E.2d at 621. See also Syl. Pt. 6, Addair v. Bryant, 168 W. Va. 306, 284 S.E.2d
374 (1981) (“Assignments of error that are not argued in the briefs on appeal may be
deemed by this Court to be waived.”); Morris v. Painter, 211 W. Va. 681, 685, 567 S.E.2d
916, 920 (2002) (citing cases refusing to address issues not properly briefed or preserved
for appeal); In re Edward B., 210 W. Va. 621, 625 n. 2, 558 S.E.2d 620, 624 n. 2 (2001)
(“Because the errors, as assigned in the Appellant’s petition for appeal, were neither
assigned nor argued in the Appellant’s brief, they are hereby waived.”); Tiernan v.
Charleston Area Med. Ctr., Inc., 203 W. Va. 135, 140 n. 10, 506 S.E.2d 578, 583 n. 10
(1998) (“Issues not raised on appeal or merely mentioned in passing are deemed waived.”).
While we find that Petitioner has waived this issue, we emphasize that even
if Petitioner had not waived this claim, Petitioner’s reply brief does not include any caselaw
24
or offer any substantive explanation addressing why the circuit court erred when it
determined that the two-year statute of limitations applied to her negligence claim against
Respondent McBride and Respondent Uptown. Further, we note that in Trafalgar House
Construction, Inc. v. ZMM, Inc., 211 W. Va. 578, 583, 567 S.E.2d 294, 299 (2002), this
Court found that “[u]nder West Virginia law, claims in tort for negligence, professional
negligence, and misrepresentation (fraudulent or negligent) are governed by a two-year
statute of limitation.” 18
18
This Court addressed the purpose and scope of the statute relied on by Petitioner,
W. Va. Code § 55-2-6a, in Gibson v. West Virginia Department of Highways, 185 W. Va.
214, 406 S.E.2d 440 (1991):
The purpose of this type of statute of repose is to protect architects and
builders from the increased exposure to liability as a result of the demise of
the privity of contract defense. Without a statute of repose, a party injured
because of a latent design or defect could sue an architect or builder many
years after a construction project was completed. This could result in stale
claims with a distinct possibility of loss of relevant evidence and witnesses.
Because architects and builders were the ones primarily exposed to
increased liability when privity of contract was abolished, we cannot fault
our legislature for protecting this group. Furthermore, our statute is not so
narrowly drawn as some in other jurisdictions. W. Va. Code, 55-2-6a, has a
ten-year limitation and bars recovery in three general areas. The first relates
to damages “for any deficiency in the planning, design, surveying,
observation or supervision of any construction[.]” The second involves
damages arising from “the actual construction of any improvement to real
property[.]” The third area is “for an injury to a person or for bodily injury
or wrongful death arising out of the defective or unsafe condition of any
improvement to real property[.]”
Id. at 220, 406 S.E.2d at 446.
(continued . . .)
25
Based on the foregoing, we affirm the circuit court’s ruling granting
summary judgment to Respondent McBride and Respondent Uptown on the negligence
claim.
The final issue is Petitioner’s claim that the circuit court erred by denying
her motion for summary judgment on her negligence claim against Respondent Zen’s.
Petitioner and Respondent Zen’s filed cross-motions for summary judgment on the
negligence claim. The circuit court denied both of these motions, ruling that “the issue of
whether Zen’s actions in grading the vacant lot and its actions after taking ownership of
the lot are questions of fact that must be addressed at trial.”
Upon review, we find that this is an interlocutory ruling that is not properly
before this Court. “An order denying a motion for summary judgment is merely
interlocutory, leaves the case pending for trial, and is not appealable except in special
instances in which an interlocutory order is appealable.” Syl. Pt. 8, Aetna Cas. & Sur. Co.
v. Fed. Ins. Co. of NY, 148 W. Va. 160, 133 S.E.2d 770 (1963). This case does not present
Further, in Stone v. United Engineering, a Division of Wean, Inc., 197 W.
Va. 347, 475 S.E.2d 439 (1996), we observed that the “general purpose of statutes of repose
[like W. Va. Code § 55-2-6a], . . . [is] to protect architects, builders and the like who have
completed their jobs and who have relinquished access and control of the improvements.”
Id. at 355, 475 S.E.2d at 446 (internal citation and quotation omitted). We note that the
alleged injury in this case does not stem from a latent design or defect that occurred many
years after a construction project was complete. Instead, Petitioner was aware of the
alleged injury to her building the morning after the fire occurred on Lot 5. Petitioner noted
that her building was flooded and noted that it looked like a “warzone” the morning after
the fire.
26
any special circumstance that would make the circuit court’s interlocutory ruling
appealable. Therefore, we reject this assignment of error.
IV. CONCLUSION
We affirm the circuit court’s January 6, 2020, order.
Affirmed.
27