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McInarnay v. Hall

Supreme Court of West Virginia

June 12, 2018

ALLEN V. MCINARNAY and ARLENE S. MCINARNAY, Defendants Below, Petitioners,
v.
PEGGY T. HALL, FRANK HALL, RUSSELL TESTERMAN, JR. ISAAC RIVER TESTERMAN, and CECILIA LEE TESTERMAN, Plaintiffs Below, Respondents.

          Submitted: January 10, 2018

          Appeal from the Circuit Court of Monroe County The Honorable Robert A. Irons, Judge Civil Action No. CC-32-2006-C-35

          John H. Bryan, Esq. Counsel for the Petitioners.

          David L. Ziegler, Esq., Anna R. Ziegler, Esq., Elise A. Keaton, Esq. Ziegler & Ziegler, L.C. Counsel for the Respondents

          JUSTICE LOUGHRY suspended and therefore not participating.

         SYLLABUS BY THE COURT

         1. "Abandonment of an easement . . . is a question of intention that may be proved by nonuse combined with circumstances which evidence an intent to abandon the right. It is the burden of the party asserting the absence of an easement by prescription to prove abandonment by clear and convincing evidence." Syllabus Point 2, in part, Strahin v. Lantz, 193 W.Va. 285, 456 S.E.2d 12 (1995).

         2. "An interpretation of the West Virginia Rules of Civil Procedure presents a question of law subject to a de novo review." Syllabus Point 4, Keesecker v. Bird, 200 W.Va. 667, 490 S.E.2d 754 (1997).

         3. "Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syllabus Point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

         4. "To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect." Syllabus Point 2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).

         5. Under the West Virginia Rules of Civil Procedure [1998], when a party has failed during a jury trial to make a motion for judgment as a matter of law under Rule 50(a) challenging the sufficiency of the evidence, that party has waived the right to mount any post-trial attack on the sufficiency of the evidence under Rule 50(b). Additionally, if the party moves for a new trial under Rule 59 and attempts to challenge the sufficiency of the evidence supporting the verdict, then the scope of review of the motion is confined to whether there was any evidence to support the jury's verdict, irrespective of its sufficiency, and which, if not addressed by the court, would result in a manifest miscarriage of justice.

          OPINION

          KETCHUM JUSTICE.

         When an error occurs during a trial, a basic rule of trial practice is that a party must promptly lodge an objection to the error. By objecting, the party alerts the opposing party and the judge of the error so it may be corrected before the jury renders a verdict. A party's failure to object usually waives the right to complain about the error after the trial.

         The plaintiff in this appeal proved she had a written easement to cross the defendants' land, but the defendants countered with evidence that the plaintiff had legally abandoned the written easement through decades of nonuse. The plaintiff claims the defendants failed to introduce sufficient evidence to support their abandonment theory. However, during two days of trial, the plaintiff never made any objection or motion that challenged the sufficiency of the defendants' evidence. The jury returned a verdict in favor of the defendants and concluded there was clear and convincing evidence that the plaintiff abandoned the written easement.

         After the trial, the plaintiff filed a motion seeking a new trial, and for the first time objected to the sufficiency of the evidence offered by the defendants. Acting on the plaintiff's motion, the circuit court set aside the jury's verdict for insufficient evidence and granted the plaintiff a new trial.

         We reverse. Under the West Virginia Rules of Civil Procedure, a motion challenging the sufficiency of the evidence must be lodged at trial, before the jury returns a verdict. Because the plaintiff made no such motion at trial in this case, the circuit court could only grant a new trial if there was absolutely no evidence to support the jury's verdict. Because the jury's verdict has support in the record, the circuit court abused its discretion in setting aside the jury's verdict and in granting a new trial.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff Peggy T. Hall[1] is an adjoining landowner with the defendants, Allen and Arlene McInarnay. Their adjoining tracts are located in Monroe County, West Virginia.

         Over a century ago, at the beginning of the twentieth century, the parties' tracts were part of a larger parcel owned by L.S. Riffe ("Mr. Riffe"). In 1908, Mr. Riffe carved out a smaller tract of land[2] that he deeded to Matilda L.V. Riffe ("Ms. Riffe"). The deed contained the following language reserving a right-of-way across Ms. Riffe's tract to Mr. Riffe's: "it is further agreed that their [sic] shall be a free road through the above named land to the out side lines or County Road. . ." This "free road" language in the 1908 deed is the source of the parties' dispute.

         Mrs. Hall owns the land formerly owned by Mr. Riffe; the McInarnays own the smaller tract conveyed to Ms. Riffe in 1908 which had the "free road" running across it. The circuit court ruled that the "free road" language created an express easement for ingress and egress to Mrs. Hall's land across the McInarnays' land. The parties agreed, based on surveys and an aerial photo from the 1940s, on the location of the original "free road" across the McInarnays' land to Mrs. Hall's land. However, undisputed evidence showed that the passage of time has largely eradicated the "free road." There is a gate blocking access to the "free road" where the ancient roadbed separates from the modern road and enters the McInarnays' land. Beyond the gate, the roadbed is overgrown with trees and cut by a creek with no bridge. Farther along, the old roadbed runs through what is now a pond and marsh grasses where the pond drains. Nearer to Mrs. Hall's tract, trash and a heap of debris block the old roadbed.

         Mrs. Hall and her family have access to their property from a modern road. However, she brought the instant suit demanding an alternative access across the McInarnays' land. In a two-day trial, Mrs. Hall sought to exercise the "free road" clause in the 1908 deed to establish a new and different route across the McInarnays' land. Mrs. Hall introduced testimony from various individuals who had crossed the McInarnays' tract, using a path different from the old "free road, " on a handful of occasions in the previous four decades.

         The McInarnays, however, asserted that Mrs. Hall had abandoned the 1908 easement. "Abandonment of an easement . . . may be proved by nonuse combined with circumstances which evidence an intent to abandon" the easement.[3] Abandonment must be proven by clear and convincing evidence.[4]

         The evidence at trial indicated that neither Mrs. Hall nor her family nor her predecessors had used the "free road" in recent decades. For instance, the prior owner of the McInarnays' land testified that, in her twenty-five years of owning the property, she never once saw the Hall family cross the property, let alone use the "free road." The prior owner said when she bought the tract in 1980 there was no visible evidence of the old roadbed. A neighbor told her about the old road that, in the distant past, ran across the land, but she did not know its location.

         Furthermore, defendant Allen McInarnay testified he walked the land before he bought it in 2005 and saw no evidence of the old "free road, " and no evidence any third parties were crossing the land. Mr. McInarnay testified he bought the property to use as an alpaca farm, and said that he would not have bought the property if he saw evidence of third parties using the property as a roadway.

         Rule 50(a) of the West Virginia Rules of Civil Procedure [1998] establishes the procedure a party must use if, at trial, the opposing party fails to produce sufficient evidence on a question. Rule 50(a) provides that, "If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, " then the opposing party must object to the lack of evidence by making a motion for judgment as a matter of law. However, during the trial, counsel for Mrs. Hall never made such a motion regarding the sufficiency of the McInarnays' evidence on the issue of abandonment of the easement.

         The jury returned a verdict finding "that the right of way to the Hall property, over the McInarnay property, has been terminated by abandonment, and that the Hall[s] have no right of way over the McInarnay property." The parties do not dispute that the jury was properly instructed that it could find in the McInarnays' favor only if there was clear and convincing evidence the easement had been abandoned.

         Mrs. Hall promptly filed a motion for judgment as a matter of law under Rule 50 or, in the alternative, a new trial. Mrs. Hall argued that the "evidence presented by the [McInarnays] is clearly insufficient to support a jury verdict extinguishing the easement because of abandonment by the [Halls]." Specifically, Mrs. Hall contended there was no evidence presented to suggest that the Hall family intended to abandon the easement.

         In an order entered December 28, 2016, the circuit court recognized that Mrs. Hall had failed to object to the sufficiency of the evidence at trial as required by Rule 50(a). The circuit court therefore found that it was "powerless" to consider a post-trial motion for judgment as a matter of law to weigh the sufficiency of the evidence.[5]

         Still, the circuit court found it could consider a sufficiency of the evidence objection, one first raised after trial, under Rule 59 (which permits circuit courts to grant a new trial). The circuit court noted that the Halls "conceded they rarely used the roadway across the lands of" the McInarnays, and found "there was ample evidence at trial concerning nonuse of the right of way[.]" The circuit court determined, however, that the evidence was not sufficient to prove that the Halls "ever had any intention to abandon the easement created by the 1908 deed." The circuit court concluded that the verdict was "against the clear weight of the evidence and will result in a miscarriage of justice and, as such, that grounds for a new trial exist[.]" The circuit court granted the motion for a new trial regarding whether the easement "has been terminated by abandonment by the [Halls, ] . . . and if not abandoned, its exact current location."

         The McInarnays now appeal the circuit court's order granting the Halls a new trial under Rule 59.

          II.

         STANDARD OF REVIEW

         Review of the circuit court's order requires us to weigh the circuit court's interpretation of Rule 50 and Rule 59 of the West Virginia Rules of Civil Procedure. "An interpretation of the West Virginia Rules of Civil Procedure presents a question of law subject to a de novo review."[6]

         We must also examine the circuit court's overall decision to grant the motion for a new trial. "This Court reviews the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard[.]"[7] "Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence."[8] "[A] trial judge should rarely grant a new trial. . . . Indeed, a new trial ...


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