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Banbury Holdings, LLC v. May

Supreme Court of Appeals of West Virginia

November 8, 2019

BANBURY HOLDINGS, LLC, Plaintiff Below, Petitioner
v.
ROBERT W. MAY, Defendant Below, Respondent

          Submitted: October 15, 2019

          Appeal from the Circuit Court of Berkeley County The Honorable Christopher C. Wilkes, Judge Civil Action No. 17-C-5

          Charles F. Printz, Jr., Esq. J. Tyler Mayhew, Esq. Bowles Rice LLP Martinsburg, West Virginia Counsel for the Petitioner

          Wm. Richard McCune, Jr., Esq. Wm. Richard McCune, PLLC Alex A. Tsiatsos, Esq. Tsiatsos Law Firm, PLLC Martinsburg, West Virginia Counsel for the Respondent

         SYLLABUS BY THE COURT

         1. "Judicial estoppel bars a party from re-litigating an issue when: (1) the party assumed a position on the issue that is clearly inconsistent with a position taken in a previous case, or with a position taken earlier in the same case; (2) the positions were taken in proceedings involving the same adverse party; (3) the party taking the inconsistent positions received some benefit from his/her original position; and (4) the original position misled the adverse party so that allowing the estopped party to change his/her position would injuriously affect the adverse party and the integrity of the judicial process." Syllabus Point 2, West Virginia Department of Transportation, Division of Highways v. Robertson, 217 W.Va. 497, 618 S.E.2d 506 (2005).

          OPINION

          ARMSTEAD JUSTICE

         This matter[1] is an appeal from an order from the Circuit Court of Berkeley County denying Petitioner Banbury Holdings, LLC's renewed motion for summary judgment and granting declaratory relief. In its order, the circuit court found that a judgment order entered in prior litigation[2] in which Banbury Holdings, LLC was a party, and recorded in the Office of the Clerk of the County Commission of Berkeley County, West Virginia, ran with the land[3] and was binding upon Banbury Holdings, LLC and all its successors in title.

         In its appeal, Banbury Holdings, LLC asserts the judgment order issued in the Injunction Proceeding was void ab initio, and could not be enforced against it[4]. However, Banbury Holdings, LLC intervened in the Injunction Proceeding in the place of the party that it now claims was not joined, and obtained a favorable ruling.

         We have reviewed the briefs, the record, and the pertinent legal authorities, and affirm the judgment of the circuit court.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         By deed dated March 4, 2005, Mark-Banbury, LLC acquired property in Berkeley County, West Virginia, containing 230.58568 acres, which it thereafter began developing as The Lakes. On the same date, Mark-Banbury, LLC granted a credit line deed of trust on The Lakes to Mercantile Mortgage Corporation[5]. Robert W. May[6] owns a piece of property across the road from The Lakes, containing 38.41 acres. As a condition of construction of The Lakes, Mark-Banbury, LLC was required by the Berkeley County Planning Commission to construct certain storm-water management facilities. Without permission, Mark-Banbury, LLC, entered on to May's land, constructed a storm-water management facility, and began draining water across May's land.

         On December 8, 2010, May brought the Injunction Proceeding against Mark-Banbury, LLC and later amended his petition to include Lawrence I. Rosenberg, managing member of Mark-Banbury, LLC, as a defendant. By judgment order entered August 5, 2013, the circuit court awarded judgment in the Injunction Proceeding in favor of May and against both Mark-Banbury, LLC and Rosenberg.

         In that order, the circuit court awarded damages and an injunction prohibiting Mark-Banbury, LLC and Rosenberg from future development of The Lakes until the encroachment on May's property was removed, flooding and damages were stopped, and further storm-water management was undertaken. That judgment order was subsequently recorded in the appropriate records in the Office of the County Commission of Berkeley County.

         At no point during the pendency of the Injunction Proceeding were Mercantile Mortgage Corporation or PNC Bank named as defendants. Nonetheless, after entry of the judgment order in the Injunction Proceeding, PNC Bank assigned the credit line deed of trust to Banbury Holdings, LLC on April 30, 2014.

         Once it had been assigned PNC Bank's interest in the credit line deed of trust, Banbury Holdings, LLC declared a default and proceeded to a trustee's sale of The Lakes, which took place on September 12, 2014. Banbury Holdings, LLC sent notice of the sale to both May and May's counsel. Upon receiving this notice, May filed an emergency motion in the Injunction Proceeding to preserve the injunction. After May filed his motion, Banbury Holdings, LLC entered an appearance in the Injunction Proceeding on September 9, 2014. A hearing on May's emergency motion was held in the circuit court on September 11, 2014 - one day prior to the trustee's sale. Banbury Holdings, LLC appeared at that hearing and argued its position that the injunction should be dissolved[7]. Following that hearing, the ...


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