1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Drenda Auvil, Respondent Below, Petitioner

vs) No. 15-0851 (Greenbrier County 14-C-78)

The Most Reverend Michael J. Bransfield, Bishop of the Diocese of Wheeling-Charleston, Petitioner Below, Respondent



### MEMORANDUM DECISION

Petitioner Drenda Auvil, pro se, appeals the order of the Circuit Court of Greenbrier County, entered on July 29, 2015, declaring that a sixteen-foot access road or alley was a part of respondent’s property and was not subject to any ri ght-of-way for petitioner. Respondent The Most Reverend Michael J. Bransfield, Bishop of the Diocese of Wheeling-Charleston, by counsel E. Lavoyd Morgan, Jr. and Denise N. Pettijohn, file d a summary response, and petitioner filed a reply.

The Court has considered the parties’ briefs and t he record on appeal. The facts and legal arguments are adequately presented, and the decisio nal process would not be significantly aided by oral argument. Upon consideration of the standar d 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 circui t court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

The parties each own real property on the north si de of Greenbrier Avenue in Ronceverte, Greenbrier County, West Virginia. On petitioner’s p roperty, there is her residence and a two-vehicle garage. Respondent owns St. Catherine o f Siena Catholic Church (“St. Catherine’s”), which has a parking lot on land adjacent to petitio ner’s property. Prior to the filing of the instant action, Father John Chapin Engler, Jr., who is the administrator of St. Catherine’s, went to speak with petitioner regarding the parking of her vehicl es in the “back area” of the St. Catherine’s parking lot. Petitioner informed Father Engler that she owned a right-of-way to use what is described as a sixteen-foot access road or alley to both the St. Catherine’s parking lot and her two-vehicle garage. 

### FILED

January 20, 2017

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

On April 30, 2014, respondent filed an action in t he Circuit Court of Greenbrier County asking for a declaration that the sixteen-foot acce ss road or alley was located on the property of St. Catherine’s and an injunction enjoining petitioner from blocking, impeding, or interfering with the use of the alley by St. Catherine’s. Petitioner fil ed an answer on May 30, 2014, admitting that a right-of-way found in a 1912 deed in respondent’s c hain of title was “a moot point” because the two properties to which that right-of-way pertained became to be owned “by the same person [(i.e., respondent and his predecessors-in-office)].” 1

The circuit court subsequently held a bench trial on June 23, 2015. At trial, respondent presented the testimony of Eugene Kelley, a license d surveyor. Mr. Kelley testified that, by an April 6, 1912, deed, respondent obtained a lot that was 237 feet by 100 feet in size and included in that was the sixteen foot access road or alley. Acc ordingly, Mr. Kelley concluded his direct testimony by testifying, as follows:

Q. Show the Judge what you’re talking about.

A. (Witness complies.) 237-foot (inaudible)[.]

Q. And[,] that’s pursuant to the 1912 deed, correc t, at the courthouse?

A. Correct[.]

Q. So, after doing all your research in this matte r, is it your conclusion that what is referred to as a 16-foot alley is the property of t he Catholic Church; is that right?

A. Correct.

Q. And[,] that is the same property that [petition er] continues to park cars on; is that right?

1 Almost a year after the filing of petitioner’s answ er, she filed a counterclaim on May 13, 2015, which the circuit court failed to address dur ing the proceedings below. However, respondent asserts that the circuit court had no obligation to address petitioner’s counterclaim because it was a compulsory counterclaim that petitioner failed to a ssert in her answer filed on May 30, 2014. We agree. Rule 13(a) of the Rules of Civil Procedure p rovides that “[a] pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim[.]” In petitioner’s counterc laim, she asked for the dismissal of respondent’s petition for declaratory and injunctive relief or, in the alternative, money damages in the amount of $204,000 for Father Engler’s “harassing, threat[en] ing, and bull[y]ing” towards her for her “[alleged] use of their parking lot.” Therefore, we find that petitioner’s counterclaim arose out of the same transaction or occurrence as respondent’s petition. Given that petitioner failed to assert the counterclaim in her answer as required by Rule 13(a), we conclude that the circuit court did not err by not addressing her counterclaim.3

A. Correct.

Petitioner cross-examined Mr. Kelley regarding all eged inconsistencies among the various surveys he did of the alley, as follows:

Q. My question is: why has the alley moved?

A. It hasn’t moved. There’s a lot (inaudible)[.] T here’s the alley (inaudible)[.] [I]t’s still there. (Inaudible)[.]

* * *

A. The 16-foot alley hasn’t moved. (inaudible) Her e’s the property line of the Church. See the 16-foot alley there (inaudible) con tinuation of the 16[-]foot alley (inaudible) right there is that corner right there. The 16[-]foot alley continues on over to that deed I just had. It says [the] 16[-]fo ot alley runs from Greenbrier

Avenue to Pocahontas Avenue. . . .

* * *

A. No. I didn’t say that. The alley didn’t change. If you look at it, that exit’s in the place it was. You can get right on through there. Y ou see this (inaudible) and it goes on over to Pocahontas Avenue (inaudible)[.]

On redirect examination, Mr. Kelley confirmed that the sixteen foot access road or alley was located on “the Church’s property.” Following t rial, the circuit court entered an order on July 29, 2015, declaring that the sixteen-foot access ro ad or alley was a part of respondent’s property and was not subject to any right-of-way for petitio ner. First, the circuit court found that the right-of-way set forth in respondent’s April 6, 191 2, deed, as being reserved for the benefit of W.J. Kramer, was extinguished when respondent acquired M r. Kramer’s property by a subsequent deed dated April 23, 1912. See Syl. Pt. 2, Henline v. Miller , 117 W.Va. 439, 185 S.E. 852 (1936) (adopting doctrine of merger). Next, the circuit co urt found that, in petitioner’s July 19, 2007, deed, she acquired “parcel no. 3,” which was descri bed as a “right to the joint use of that certain access road or driveway to a garage located partly on the rear of Lot No. 1 and Lot No. 2 and used jointly by the grantor and the adjoining property o wner[.]” The circuit court determined that it was not possible to “ascertain where this supposed righ t-of-way was located or whether the garage referred to in [petitioner]’s chain of title is sti ll standing.” The circuit court concluded, as follo ws:

. . . There is no evidence before the Court that t he lot owned by [petitioner] was severed from that owned by [respondent] in such a way that a quasi-easement was created. Further, there is no description of th e right-of-way in any of the deeds that would allow the Court to discover if the right -of-way and the sixteen foot alley

are one and the same.

This Court is of the opinion that, without the ben efit of a description of the4

right-of-way claimed by [petitioner], the right-of- way in [petitioner]’s deed and the sixteen[ ] foot alley way are not one and the same.

. . .

Accordingly, the circuit court enjoined petitioner from “blocking, impeding, or otherwise interfering” with the sixteen-foot access road or a lley, which is respondent’s property.

Petitioner now appeals the circuit court’s July 29 , 2015, order. We apply the standard for reviewing a judgment entered following a bench tria l:

In reviewing challenges to the findings and conclu sions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are re viewed under an abuse of discretion standard, and the circuit court’s underl ying factual findings are reviewed under a clearly erroneous standard. Questions of la w are subject to a de novo review.

Syl. Pt. 1, Public Citizen, Inc. v. First National Bank in Fair mont , 198 W.Va. 329, 480 S.E.2d 538 (1996).

On appeal, petitioner contends that the sixteen-fo ot access road or alley is not located on property granted to respondent in the April 6, 1912 , deed, but concedes that testimony was conflicting as to that issue. “An appellate court m ay not decide the credibility of witnesses or weigh evidence as that is the exclusive function an d task of the trier of fact.” State v. Guthrie , 194 W.Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995). While petitioner cross-examined respondent’s surveyor regarding whether he moved th e alley on certain surveys, Mr. Kelley was adamant that he did not, explaining that “[h]ere’s the property line of the Church” and that “[t]he 16[-]foot alley continues on over to that deed I ju st had.” On redirect examination, Mr. Kelley

confirmed that the sixteen-foot access road or alle y was located on “[respondent]’s property.” The circuit court heard Mr. Kelley’s testimony and was able to observe his demeanor. We conclude that nothing in the record on appeal indicates that the circuit court’s finding that the alley was located on respondent’s property was clearly errone ous.

Petitioner contends that the circuit court’s rulin g also involved the interpretation of the right-of-way found in each party’s respective deed, which we review de novo. See Cabot Oil & Gas Corp. v. Huffman , 227 W.Va. 109, 116, 705 S.E.2d 806, 813 (2010). H owever, we find that the circuit court did not need to interpret the par ties’ deeds. With regard to the right-of-way in respondent’s deed, petitioner conceded in her answe r that the subsequent acquisition of the property that was the dominant estate extinguished that easement. With regard to the right-of-way found in petitioner’s July 19, 2007, deed, the circ uit court accepted that there was language giving her a “right to the joint use of that certain acces s road or driveway to a garage located partly on th e rear of Lot No. 1 and Lot No. 2 and used jointly by the grantor and the adjoining property owner[.]” Rather, the circuit court found that no r ight-of-way belonged to petitioner on the ground

that there was “no evidence” that allowed the court to “ascertain where this supposed right-of-way was located or whether the garage referred to in [p etitioner]’s chain of title is still standing.” Tha t is a factual finding, to which deference is owed. U pon our review of the record, we conclude that5

the circuit court’s finding that there was no evide nce that petitioner’s claimed right-of-way actually existed was not clearly erroneous.

Finally, petitioner alleges that, if she cannot us e the alley to access her garage, she will not have any access to her property. Respondent counter s that petitioner has other points of access to her property as petitioner’s property abuts a city street. We agree with respondent. We find that, while petitioner’s garage may be her preferred plac e to park her vehicles, Mr. Kelley indicated in his testimony that petitioner had more than one way of accessing her property. Therefore, we

conclude that the circuit court did not abuse its d iscretion in enjoining petitioner from “blocking, impeding, or otherwise interfering” with the sixtee n-foot access road or alley, located on respondent’s property.

For the foregoing reasons, we affirm the cir cuit court’s July 29, 2015, order declaring that the sixteen-foot access road or alley was a part of respondent’s property and was not subject to any right-of-way for petitioner.

Affirmed.



### ISSUED: January 20, 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