Dale Anthony and Shatika Marie Campbell v. Annette Schoew

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Dale Anthony Campbell FILED

and Shatika Marie Campbell,

Defendants Below, Petitioner April 10, 2017

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

vs) No. 16-0306 (Wayne County 15-C-014) OF WEST VIRGINIA

Annette Schoew,

Plaintiff Below, Respondent

MEMORANDUM DECISION

Petitioners Dale Anthony Campbell and Shatika Marie Campbell, by counsel J. William

St. Clair, appeals the Circuit Court of Wayne County’s March 2, 2016, order denying their

“motion for reconsideration” of an order granting summary judgment to respondent.1 Respondent

Annette Schoew, by counsel Matthew L. Ward, filed a response in support of the circuit court’s

March 2, 2016, order. Petitioners filed a reply.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal

arguments are adequately presented, and the decisional process would not be significantly aided

by oral argument. Upon consideration of the standard of review, the briefs, and the record

presented, the Court finds no substantial question of law and no prejudicial error. For these

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21

of the Rules of Appellate Procedure.

In January of 2015, respondent filed a complaint in the Circuit Court of Wayne County

seeking the removal of petitioners’ double-wide trailer from the Twin Valley Estates subdivision.

In her complaint, respondent alleged that petitioners acquired a lot (Lot 33) in the subdivision in

December of 2014 and immediately placed a double-wide trailer or “modular home” on the lot as

a residence. Respondent further alleged that placing a double-wide trailer in the subdivision

violated “a certain number of restrictive covenants” governing petitioners’ lot. In their answer to

the complaint, petitioners generally denied violating any restrictive covenants and argued that

their structure was permanent.2 From February to May of 2015, the parties engaged in discovery.

1

With regard to “motions for reconsideration” in civil cases, we have explained that “[a]

‘motion to reconsider’ is not recognized under our Rules of Civil Procedure.” Syl. Pt. 3, in part,

Malone v. Potomac Highlands Airport Auth., 237 W.Va. 235, 786 S.E.2d 594 (2015).

2

It is unclear when, or if, petitioners filed an answer below. While the parties claim that

petitioners filed their initial answer on February 27, 2015, there is no entry on the docketing

(continued . . . )

1

On May 21, 2015, petitioners’ attorneys moved to withdraw as counsel. On May 29,

2015, respondent filed a motion for summary judgment arguing that petitioners’ trailer violated

two restrictive covenants applicable to their property: (1) the covenant providing that “[n]o

structure of a temporary character, trailer, tent, garage, basement or outbuilding shall be used as

[sic] any time as a residence”; and (2) the covenant providing that “[n]o residence building shall

be constructed on such lot with its main front wall closer than twenty-five (25) feet to the front

lot line on which same [sic] faces, nor with any part thereof closer than five (5) feet to any side

lot line.”

In July of 2015, following a hearing, the circuit court granted the motion by petitioners’

attorneys to withdraw from the case. The circuit court granted petitioners thirty days to find new

counsel. In early October of 2015, petitioners, pro se, filed a written response to respondent’s

summary judgment motion.3

On October 26, 2015, the circuit court held a final hearing on respondent’s motion for

summary judgment. At the final hearing, respondent submitted a survey of the relevant lots of

the subdivision that showed petitioners’ trailer located within 1.47 feet of Lot 33’s side lot line.

Respondent argued that the survey clearly demonstrated a violation of the five-foot setback

covenant. Respondent further argued that petitioners’ trailer was a temporary structure that had

been towed to the lot on axles and wheels.

As to the five-foot setback claim, petitioners argued that other dwellings in the

subdivision were built within five feet of a side lot line, but the circuit court denied petitioners’

request to admit photographs of those other dwellings as irrelevant. Petitioners further argued

that their adjoining neighbor agreed to grant them an easement of a portion of the adjoining lot,

which would extend their usable property beyond five feet of their trailer. As to the temporary-

structure claim, petitioners admitted to the manner in which the trailer arrived at the property, but

they maintained that the trailer was made permanent by attaching it to a permanent foundation.

Petitioners also asserted that they had applied to have the title to the trailer canceled by the

county clerk and reclassified from personal property to real estate. Moreover, petitioners claimed

that the restrictive covenants were abandoned and/or waived and did not apply to their lot.4

sheet for an initial answer, and there is no time-stamped copy of an answer included in the

appendix record.

3

Petitioners’ response to the motion for summary judgment is not included in the record

on appeal.

4

Petitioners offered the testimony of Clint Maynard to support their claim, but the circuit

court found his testimony inadmissible as both irrelevant and insufficient to create a disputed

material fact.

2

By order entered on November 8, 2015, the circuit court granted respondent’s motion for

summary judgment. In so doing, the circuit court found that the restrictive covenants at issue

applied to petitioners’ property; that petitioners’ trailer was built only 1.47 feet from Lot 33’s

side lot line in violation of the five-foot setback restriction, which could not be cured by an

easement from the adjoining neighbor (mother to one of the petitioners); and that petitioners’

trailer was temporary in nature and could not be made permanent by placing it on a permanent

foundation. Consequently, the circuit court ordered petitioners to remove the trailer by May 1,

2016.

On February 8, 2016, petitioners filed a “motion for reconsideration.”5 On February 24,

2016, the circuit court held a hearing on the motion. Petitioners, by counsel, asked the circuit

court to reconsider its ruling that their structure was temporary. Further, petitioners argued that

they had obtained newly discovered evidence in the form of a quitclaim deed dated February 4,

2016, from the adjoining landowner for a small piece of property extending their boundary line

beyond five feet from their trailer. Petitioners argued that the deed cured their violation of the

five-foot setback covenant. In response, respondent argued the motion should be denied because

it lacked factual and legal merit. Respondent maintained that petitioners violated both restrictive

covenants. Respondent also claimed that the “motion for reconsideration” was untimely because

it was not filed in the same term of court as the order under review.

By order entered on March 2, 2016, the circuit court denied petitioners’ “motion for

reconsideration.” Initially, the circuit court noted that the “motion for reconsideration” was

timely filed because it was, in fact, filed in the same term of court as the order under review. As

to the merits, the circuit court found that petitioners’ quitclaim deed did not alter the five-foot

setback violation because the trailer remained within five feet of a “side lot line” as that phrase

was used in the restrictive covenant. The circuit court explained that allowing property owners to

adjust their boundary and lot lines could frustrate the expectations of other property owners in

the subdivision. Further, as to the temporary nature of the trailer, the circuit court acknowledged

that the trailer’s axles and wheels were removed; that it was placed on a permanent block

foundation; that the title was canceled; and that the county would thereafter assess it as real

property. However, the circuit court also found that the trailer was towed to the property on axles

and wheels. As such, the circuit court found that the trailer was of a temporary character and

denied petitioners’ invitation to alter its prior ruling. This appeal followed.6

5

It appears that petitioners obtained new counsel by February of 2016. However, it is

unclear whether that counsel filed the “motion for reconsideration” because that motion is not

included in the record on appeal. As reflected in the circuit court’s March 2, 2016, order,

petitioners filed a motion for summary judgment with their “motion for reconsideration” in

February of 2016. The circuit court found petitioners’ motion for summary judgment to be

untimely filed.

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The parties dispute the scope of appellate review in this case, and, consequently, they

dispute the applicable standard of review. Petitioners argue that their appeal includes a review of

the November 8, 2015, order granting summary judgment and that a de novo standard of review

applies. Respondent, on the other hand, asserts that this Court’s review is limited to the March 2,

(continued . . . )

3

With regard to Rule 60(b) motions, we have held that “[a]n appeal of the denial of a Rule

60(b) motion brings to consideration for review only the order of denial itself and not the

2016, order denying petitioners’ “motion for reconsideration,” for which an abuse-of-discretion

standard applies. At the heart of the dispute is whether Rule 60(b) of the West Virginia Rules of

Civil Procedure applies to petitioners’ “motion for reconsideration.” Respondent argues that

petitioners’ “motion for reconsideration” falls under Rule 60(b), and, therefore, it did not renew

or toll the appeal period of the November 8, 2015, order. Under respondent’s argument,

petitioners’ failed to timely appeal the November 8, 2015, order and cannot do so in the instant

appeal. Petitioners counter that their motion did not fall under Rule 60(b) because they did not

expressly invoke Rule 60(b) in their motion. In support of their argument, petitioners contend

that this Court can review both orders based on our holding in Asset Acceptance, LLC, v. Grove,

No. 14-1265, 2015 WL 6143368 (W.Va. Oct. 16, 2015) (memorandum decision). In Asset

Acceptance, this Court considered the jurisdiction of a circuit court to sua sponte alter a prior

order before the end of the term of court in which the prior order was entered. We find that the

facts and procedural posture of the instant case are wholly distinguishable from those of Asset

Acceptance.

Having reviewed the parties’ arguments, the record on appeal, and pertinent legal

authority, we agree with respondent that petitioners’ motion falls under Rule 60(b). In this case,

it is undisputed that the summary judgment order was entered on November 8, 2015, and

petitioners did not file their “motion for reconsideration” until February 8, 2016. See Syl. Pt. 2,

in part, Malone v. Potomac Highlands Airport Authority, 237 W.Va. 235, 786 S.E.2d 594 (2015)

(holding that “[i]f the motion is filed outside the ten-day limit, it can only be addressed under

Rule 60(b)”) (internal citation omitted). Notably, if the motion falls under Rule 60(b), then the

filing of the motion does not toll the appeal period for the underlying final judgment. This Court

has explained that “a motion made pursuant to Rule 60 does not toll the running of the appeal

time[.]” Toler v. Shelton, 157 W.Va. 778, 783, 204 S.E.2d 85, 88 (1974). See Builders’ Service

and Supply Co. v. Dempsey, 224 W.Va. 80, 85,680 S.E.2d 95, 100 (2009) (stating that “Rule

60(b) provides a remedy which exists concurrently with and independently of the remedy of

appeal” (internal citation omitted)); Syl. Pt. 5, Burton v. Burton, 223 W.Va. 191, 672 S.E.2d 327

(2008) (holding that “‘[a] motion which would otherwise qualify as a Rule 59(e) motion that is

not filed and served within ten days of the entry of judgment is a Rule 60(b) motion regardless of

how styled and does not toll the four[-]month appeal period for appeal to this court.”) (internal

citation omitted). Because petitioner’s motion falls under Rule 60(b) and the instant appeal arises

solely from the denial of that motion, our appellate review is limited the circuit court’s March 2,

2016, order denying the Rule 60(b) motion. Therefore, the standard of review for Rule 60(b)

motions is applied here.

Further, while petitioners’ “motion for reconsideration” was not designated as a Rule

60(b) motion below and was not analyzed as such, we have explained that “[i]t is permissible for

us to affirm the granting of [dismissal] on bases different or grounds other than those relied upon

by the circuit court.” Gentry v. Mangum, 195 W.Va. 512, 519, 466 S.E.2d 171, 178 (1995).

4

substance supporting the underlying judgment nor the final judgment order.” Toler, 157 W.Va. at

778, 204 S.E.2d at 86, syl. pt. 3. Further, “[a] motion to vacate a judgment made pursuant to Rule

60(b), W. Va. R.C.P., is addressed to the sound discretion of the court and the court's ruling on

such motion will not be disturbed on appeal unless there is a showing of an abuse of such

discretion.” Id. at 778, 204 S.E.2d at 86, syl. pt. 5.

On appeal, petitioners first argue that the circuit court erred in finding that their double-

wide trailer was “of a temporary character,” in violation of a restrictive covenant prohibiting the

use of a structure of a temporary character as a residence. Rule 60(b) provides, in pertinent part,

as follows:

Mistakes; Inadvertence; Excusable Neglect; Unavoidable Cause; Newly

Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the

court may relieve a party or a party’s legal representative from a final judgment,

order, or proceeding for the following reasons: (1) Mistake, inadvertence,

surprise, excusable neglect, or unavoidable cause; (2) newly discovered evidence

which by due diligence could not have been discovered in time to move for a new

trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has been satisfied, released, or discharged, or a

prior judgment upon which it is based has been reversed or otherwise vacated, or

it is no longer equitable that the judgment should have prospective application; or

(6) any other reason justifying relief from the operation of the judgment.

We find that petitioners’ Rule 60(b) motion was properly denied on the issue of whether the

circuit court correctly found in its prior order that the trailer was a temporary structure. We have

held that a Rule 60(b) motion “is simply not an opportunity to reargue facts and theories upon

which a court has already ruled. . . . [T]he basis for setting aside a judgment under the rule must

be something that could not have been used to obtain a reversal by means of a direct appeal.”

Dempsey, 224 W.Va. at 85, 680 S.E.2d at 100. Petitioner offered no argument that the circuit

court’s ruling was based on mistake, inadvertence, surprise, etc., or that new evidence or any

other reason unavailable on direct appeal demanded a different result. For that reason, we find no

error in the circuit court’s denial of petitioners’ Rule 60(b) motion based on their renewed

arguments that the trailer was not a temporary structure.

Next, petitioners argue that the circuit court erred in finding that their acquisition of a

quitclaim deed to a portion of the adjoining lot did not cure the five-foot setback violation.

Petitioners further argue that the deed constituted newly discovered evidence. Respondent

counters that the circuit court’s order properly applies the language of the restrictive covenant at

issue. Respondent notes that the restrictive covenant prohibits a structure within five feet of “any

side lot line.” Respondent argues that, at best, petitioners’ deed created a new property line, not a

new lot line as envisioned by the original drafters. The circuit court agreed with respondent and

found that “allowing adjoining property owners to adjust their boundary and lot lines between

themselves could frustrate the expectations of the owners of other lots within the subdivision in

regards to the enforcement of the relevant covenants.” On review, this Court finds no abuse of

discretion in the circuit court’s finding that petitioners’ could not move their “lot line” by the

5

acquisition of a portion of the adjoining lot and that to do so would not meet the language of the

covenant. Further, it is apparent from the record on appeal that the lot lines remained despite the

acquisition of a portion of the adjoining lot. At the February 24, 2016, hearing, petitioners’

counsel still referred to his client’s new property using the lot line divisions, referring to it as “a

sliver of property between their adjoining lots, lots 33 and 32.” As such, it was not established

that petitioners could, or in fact did, move the applicable “lot lines” by acquiring adjoining land.

For the foregoing reasons, the circuit court’s March 2, 2016, order is hereby affirmed.

Affirmed.

ISSUED: April 10, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II

Justice Robin Jean Davis

Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

6