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Campbell v. Schoew

Supreme Court of West Virginia

April 10, 2017

Dale Anthony Campbell and Shatika Marie Campbell, Defendants Below, Petitioner
v.
Annette Schoew, Plaintiff Below, Respondent

         Wayne County 15-C-014

          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.

         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]

         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]

         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 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 ...

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