1 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia ex rel. Robert Hooff

, Petitioner

vs) No. 23

- 53

The Honorable Ronald E. Wilson,

Judge of the Circuit Court of Ohio County, and

The Estate of Sylvia Peace,

by and through Tony Peace, Ex e cutor, and

E. Phillips Polack

, Respondents

MEMORANDUM DECISION

Petitioner Robert Hooff seeks a writ to prohibit enforcement of a January 24, 2023 order

from the Circuit Court of Ohio County requiring him to, among other things, allow his neighbors

to conduct percolation testing on his property with a view to installin g a drainage field for a septic

system , there. For the reasons discussed below, we concur with Mr. Hooff that the order is clearly

erroneous, so we grant the writ

. 1

Petitioner Robert Hooff

, Respondent E. Phillips Polack , and the Estate of Sylvia Peace 2

own neighboring real estate in Ohio County. 3 T he properties come from a common parcel on

which four homes had been built. P ipes running from those homes transported sewage into a

disposal system located mainly on what would later become Mr. Hooff’s parcel. Mr. Hooff claims

that he became aware that pipes transported sewage from the residences on Mr. Polack’s and the

1 Resolution of this petition for extraordinary relief by memorandum decision is

appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.

2 The Estate of Sylvia Peace, by and through Tony Peace, Executor, did not respond to the

petition.

3 Petitioner Hooff is represented by counsel Frank X. Duff, Sandra K. Law, and R. Jared

Lowe. Respondent Polack is represented by Mark A. Kepple and Benjamin Visnic. Counsel

signed the response on behalf of “Respondents, E. Phillips Polack and Wendy Polack.” Mrs.

Polack is not named as a party on the complaint contained in the appendix record, so we refer to

Mr. Polack, only, in this decision. 

### FILED

October 20, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 Peace Estate’s properties onto his own in 2020. He represents th at, in July 2021, he asked officials

at the Wheeling

- Ohio County Health Department to take action to rectify that situation. In August

2021, the Health Department issued permits to Mr. Polack and the Peace Estate to install sewage

systems on their own properties.

Rather than install the systems specified in those permits, Mr. Polack and the Peace Estate

sued Mr. Hooff in September 2021

, alleging that the current sewage system serving their properties

(i.e., the pipe discharging sewage onto Mr. Hooff’s property) did not comply with current law and

that they wanted to improve the system. They could not do this, they alleged

, unless Mr. Hooff

allowed them on his property and agreed to pay his share of improvements. Mr. Hooff had to do

that, they claimed, because they had an implied easement over his property for sewage disposal

purposes, including testing and upgrading the disposal system. They asserted claims for slander

of title and conversion, a declaratory judgment, tortious interference, and attempted financial

exploitation. They sought an injunction and temporary restraining order , plus damages “for build

out of an alternative sewer facility” and “loss of land if required to use other land as septic facility ,”

among other r elief.

On December 13, 2021, Mr. Polack and the Peace Estate moved for a “preliminary

injunction permitting testing and access.” They asserted that they were “entitled to access [Mr.

Hooff’s] property to survey, locate, install, and maintain a sewer system for the dominant estate

parcels [i.e., theirs] without interference” by Mr. Hooff. In his response to the motion for

preliminary injunction , Mr. Hooff argued that Mr. Polack and the Peace Estate could not

demonstrate that they held an implied easement over his property and that state regulation bars

“[o]ff

- lot disposal of sewage or effluent requiring the use of or crossing of adjacent property”

without “a recorded easement or authorization.” 4

On October 27, 2022, counsel for Mr. Hooff informed the Ohio County Solicitor by letter

that Mr. Polack had let his permit expire and was in violation of various public health laws and

regulations. 5 Counsel for Mr. Hooff asked the Solicitor to enforce those public health laws

. On

November 7, 2022, counsel for Mr. Polack reported to the court that “upon information and belief,”

Mr. Hooff had “caused the Ohio County Health Department to attempt to disconnect the water

service to the two homes” on Mr. Polack’s property . Counsel referenced Mr. Polack and the Peace

Estate’s plea for injunctive relief and requested “an emergency hearing on the injunctive relief

issues.” Four days later, the court entered an agreed order 6 temporarily enjoining the Ohio County

Health Department, the City of Wheeling, and the Water Department of the City of Wheeling from

disconnecting the water service to the two houses on Mr. Polack’s property.

4 W. Va. Code of State Rules 64

- 9

- 3.8 (1998)

.

5 Mr. Hooff relayed that a septic system had been installed on the Peace property.

6 As stated in the order

, Mr. Hooff did not object to the request that the court enjoin,

temporarily, the Ohio County Health Department, the City of Wheeling, and the City of

Wheeling ’ s Water Department from disconnecting the water service to the two houses located on

Mr. Polack ’ s property. The order also reflects that “ [t]he parties ’ positions regarding the statutory

authority of the Ohio County Health Department to take action in this matter are not waived and

are preserved

, ” with no further explanation.3 The p arties convened for a status hearing on November 21, 2022. At the hearing, Mr.

Polack’s counsel suggested to the court that “maybe one smart move for us may be to clear up a

threshold issue. Would [Mr. Hooff’s] land even get through a [percolation] test?” According to

Mr. Polack’s counsel, if the court did not permit h is client to conduct a percolation test on Mr.

Hooff’s property, “we’re spinning our wheels trying to determine that we still have rights to keep

doing what we’re doing.” Mr. Hooff’s counsel was not amenable to that idea and reminded the

circuit court of his client’s position that “Dr. Polack has no right to use – has no easement here at

all.” The court dismissed counsel’s protest, stating that it was “not buying into that argument. We

got to solve the problem.” Counsel for Mr. Hooff later restated his client’s position that Mr. Polack

had no right to enter the Hooff property. Again, the circuit court pushed the issue aside, informing

Mr. Hooff’s counsel that, “to the extent that there is a legal argument that [ Mr. Polack and the

Peace Estate ] have a right that has continued to be on [Mr. Hooff’s] property for this sole pur pose

[i.e., sewage disposal], that’s something you might have to win in the [S]upreme [C]ourt.” This

exchange occurred at the end of the hearing:

Th e [c]ourt: Okay. So all you’re asking now is to take perc tests along here?

[Counsel for Mr. Polack] : Yeah.

The [c]ourt: Do it.

[Counsel for Mr. Polack] : Thank you.

[Counsel for Mr. Hooff]: Your Honor, if you could just note my objection, please.

The [c] ourt: Well, prepare the order and note his objection, of course.

Counsel for Mr. Polack then represented to the court that “we currently have until the 15 th

of December where they were calling off the dog, so to speak, with regard to the water. The person

that lives in this house is getting married that next weekend.” Counsel went on to propose “that

we keep the water on until such time that it can reasonably be expected to solve it,” to which the

court responded, “Yeah.”

Mr. Polack filed a proposed order on December 12, 2022, reflecting the court’s rulings

during the November 21 hearing

. That same day, Mr. Hooff notified the court of his intent to seek

extraordinary relief from this Court, objected to the order proposed by Mr. Polack because it lacked

findings of fact and conclusions of law

, and asked the court to enter an order that complied with

the requirements set out State ex rel. Allstate Ins. Co. v. Gaughan

. 7 Regardless, the court entered

7 See Syl. Pt. 6, State ex rel. Allstate Ins. Co. v. Gaughan , 203 W. Va. 358, 508 S.E.2d 75

(1998) (“ A party seeking to petition this Court for an extraordinary writ based upon a non

appealable interlocutory decision of a trial court, must request the trial court set out in an order

findings of fact and conclusions of law that support and form the basis of its decision. In making

the request to the trial court, counsel must inform the trial court specifically that the request is4 Mr. Polack’s proposed order on January 19, 2023. Mr. Hooff moved the court to reconsider that

order and suspend proceedings pending resolution of his petition for a writ of prohibition from this

Court. On January 24, 2023, the court entered an amended order nearly identical to the January

19 order and denied the motion to suspend proceedings. Mr. Hooff then petitioned this Court for

a writ of prohibition on January 26, 2023. Later, on February 16, 2023, this Court granted Mr.

Hooff’s motion to stay execution of the January 24 order.

Mr. Hooff petitions this Court for relief in prohibition. This Court’s standard for granting

relief in prohibition “ for cases not involving an absence of jurisdiction ” is well

- established. 8 We

grant that extraordinary relief only after considering these five factors:

(1) whether the party seeking the writ has no other adequate means, such as direct

appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or

prejudiced in a way that is not correctable on appeal; (3) whether the lower

tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower

tribunal’s order is an oft repeated error or manifests persistent disregard for either

procedural or substantive law; and (5) whether the lower tribunal’s order raises new

and important problems or issues of law of first impression. These factors are

general guidelines that serve as a useful starting point for determining whether a

discretionary writ of prohibition should issue. Although all five factors need not be

satisfied, it is clear that the third factor, the existence of clear error as a matter of

law, should be given substantial weight. [ 9 ]

Mr. Hooff posits that the circuit court exceeded its legitimate authority and clearly erred in

two ways. He contends that the circuit court should not have ordered Mr. Hooff to permit Mr.

Polack and the Peace Estate (or their agents) to enter Mr. Hooff’s property to conduct percolation

testing, there, without “conduct[ing] appropriate evidentiary proceedings with the appropriate

burden of proof and find er of fact . . . .” Mr. Hooff also argues that the circuit court lacked

jurisdiction to enjoin disconnection of water service to the residences on Mr. Polack’s property.

Mr. Polack responds that the January 24, 2023 order serves the interest of judicial

efficiency because “[i]f the land subject to Respondents’ easement over [the Hooff ] property will

not support a modern septic system . . . these facts should be known before any further litigation

being made because counsel intends to seek an extraordinary writ to challenge the court ’ s ruling.

When such a request is made, trial courts are obligated to enter an order containing findings of fact

and conclusions of law. Absent a request by the complaining party, a trial court is under no dut y to set out findings of fact and conclusions of law in non-appealable interlocutory orders.”).

8 Syl. Pt. 4, in part, State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996).

9 Id

.5 regarding the easement is completed.” 10 On Mr. Hooff’s second point, M r. Polack responds that

the circuit court did not overstep its authority vis à vis enforcement of public health laws because

the court “did not overturn the Health Department’s [o]rder. Instead, it ordered the Health

Department to temporarily ‘not interrupt or otherwise disconnect the water service’ to [Mr.

Polack’s] house, pending the resolution of the litigation.” 11

The January 24, 2023 order does not identify under which rule or rule s of the West Virginia

Rules of Civil Procedure the court proceeded. We elect to treat the order as one granting

preliminary, injunctive relief considering that the motion for a “preliminary injunction permitting

testing and access” remained pending in January 2023 and the order issued following a hearing

requested by counsel for Mr. Polack to address “the injunctive relief issues .”

This Court has held that:

The granting or refusal of an injunction, whether mandatory or

preventive, calls for the exercise of sound judicial discretion

, in view of all

the circumstances of the particular case; regard being had to the nature of

the controversy, the object for which the injunction is being sought, and the

comparative hardship or convenience to the respective parties involved in

the award or denial of the writ. [ 12 ]

When weighing the comparative hardship to the parties, the court

“ must consider, in ‘ flexible interplay, ’ the following four factors in determining

whether to issue a preliminary injunction : (1) the likelihood of irreparable harm to

the plaintiff without the injunction; (2) the likelihood of harm to the defendant with

an injunction; (3) the plaintiff’s likelihood of success on the merits ; and (4) the

public interest.” [ 13 ]

10 In briefing and at oral argument, counsel for Mr. Polack suggested that any infirmity in

the court ’ s order was innocuous considering the procedure set forth in West Virginia Rule of Civil

Procedure 34(a) , which provides for discovery requests “ to permit entry upon the designated land

. . . in the possession or control of the party upon whom the request is served for the purpose of

inspection and measuring, surveying, photographing, testing, or sampling the property . . . within

the scope of Rule 26(b).” C ounsel’ s invocation of Rule 34 is not persuasive, though; at oral

argument, counsel conceded that Mr. Hooff had not been served with a Rule 34 request to inspect

his property.

11 Emphasis in original.

12 Syl. Pt. 4, State ex rel. Donley v. Baker , 112 W. Va. 263, 164 S.E. 154 (1932).

13 Jefferson Cty. Bd. of Educ. v. Jefferson Cty. Educ. Ass ’n , 183 W. Va. 15, 24, 393 S.E.2d

653, 662 (1990) (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048,

1054 (4th Cir. 1985) (citation omitted) ).6 Cast in terms of a preliminary injunction, Mr. Hooff ’s first argument is that the court

exceeded its legitimate authority and clearly erred as a matter of law when it ordered injunctive

relief without considering that third factor; that is, without requiring Mr. Polack or the Peace Estate

to establish the likelihood of their success on the merits of their claim to an implied easement by

necessity . To establish an implied easement by necessity

, the clai mant must prove, by clear and

convincing evidence, 14

four elements: (1) prior common ownership of the dominant and servient estates;

(2) severance (that is, a conveyance of the dominant and/or servient estates to

another); (3) at the time of the severance, the easement was strictly necessary for

the benefit of either the parcel transferred or the parcel retained; and (4) a

continuing necessity for an easement

. [ 15 ]

Here, the court ordered Mr. Hooff to permit Mr. Polack and the Peace Estate “ to investigate

the suitabilit y of [a certain] area” on the Hooff property “for installation of the drainage field for

the septic systems .” While Mr. Polack view s that investigation as a practicalit y supportive of

judicial efficiency, entry to Mr. Hoof f

’s property, testing of Mr. Hooff’s property , and installation

of a waste disposal system, there, are clearly the salient features of the claimed implied easement

. In fact, as part of that claim, Mr. Polack and the Peace Estate expressly sought “a temporary

injunction halting interference and permitting access [to the Hooff property] for testing

(percolation) and surveying necessary for upgrades on the system.”

So, before granting the preliminary, injunctive relief at issue

, the circuit court was bound

to consider the likelihood o f success on the merits of the implied easement claim . But t he court

did not do that

— in fact, it repeatedly refused to do so. Further, the court did not weigh the

likelihood of irreparable harm to Mr. Polack and the Peace Estate without injunctive relief against

the likelihood of irreparable harm to Mr. Hooff with the injunction, or whether the requested

injunction serves the public’s interest. In short , the circuit court granted injunctive relief without

requiring Mr. Polack or the Peace Estate to satisfy the applicable procedural and substantive

requirements. For those reasons, the order of January 24, 2023 is clearly erroneous as a matter of

law.

Mr. Hooff also challenges the court’s authority to delay the enforcement proceeding

allegedly i nstituted by the Ohio County Health Department. We decline to address Mr. Hooff’s

argument, though, because it is obviated by a more fundamental defect. West Virginia Rule of

Civil Procedure 65(d) provides that “[e]very order granting an injunction . . . is binding only upon

the parties to the action . . . . and upon those persons in active concern or participation with them

. . . . ” Plainly, the Ohio County Health Department, the City of Wheeling, and the Water

Department of the City of Wheeling are not parties to this civil action . Mr. Polack concede s that

“the Health Department unquestionably has jurisdiction over water inspection duties” and current

sewer facilities do not comply with applicable health laws . Moreover, the cases cited by Mr.

Polack to shore up issuance of a temporary injunction against the County and City entities do not

14 See Syl. Pt. 2, Cobb v. Daugherty, 225 W. Va. 435, 693 S.E.2d 800 (2010).

15 Syl. Pt. 4, in part, id

.7 involve injunctions. 16 In view of the se circumstances , we conclude that the November 11, 2022

and January 24, 2023 order s are ineffective as to the non

- p arties named there

.

For these reasons, we grant the writ requested by Mr. Hooff prohibiting enforcement of the

January 24, 2023 order of the Circuit Court of Ohio County

.

Writ granted.

ISSUED: October 20, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

Justice C. Haley Bunn

16 See State ex rel. Bell Atlantic

- West Virginia, Inc. v. Ranson , 201 W. Va. 402, 413, 497

S.E.2d 755 , 766 (1997) ( circuit court properly refused to dismiss plaintiffs ’ fraud , antitrust, and

consumer protection claims, inter alia, against telephone companies desp ite shared jurisdiction

with the Public Service Commission ); Hedrick v. Grant Cty. Pub. Serv. Dist. , 209 W. Va. 591,

597, 550 S.E.2d 381 , 387 ( 2001) (reversing dismissal of appellant ’ s civil suit ; appellant could

simultaneously pursue damages against public service district in circuit court and grieve district ’ s

refusal to extend a sewer line to appellant ’ s property to the Public Service Commission )

.