STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

PAMELA JEAN HAYES, June 8, 2016 

released at 3:00 p.m. 

Plaintiff Below, Petitioner RORY L. PERRY, II CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 15-0518 (Upshur County Civil Action No. 14-C-123) 

LARRY BRADY AND 

DAWNA MICHELLE BOONE BRADY, 

Defendants Below, Respondents 

MEMORANDUM DECISION 

Petitioner, plaintiff below, Pamela Jean Hayes (“Ms. Hayes”), appeals from an 

order of the Circuit Court of Upshur County, West Virginia, granting the motion of the 

Respondents, defendants below, Larry Brady and Dawna Michelle Boone Brady (“the 

Bradys”), to dismiss Ms. Hayes’ complaint on grounds that her claims were res judicata.

1 

The order further denied Ms. Hayes’ motion for relief from judgment in a prior action on 

grounds that Ms. Hayes’ allegations in support of the motion were immaterial and thus 

insufficient to establish fraud, accident, or mistake. 

This Court has considered the parties’ briefs and oral arguments, as well as the 

record on appeal. Upon consideration of the standard of review and the applicable law, 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 

Revised Rules of Appellate Procedure. 

On March 13, 2013, Ms. Hayes filed a pro se complaint against the Bradys, 

Case No. 13-C-29, seeking injunctive relief. Ms. Hayes alleged that she had a longstanding 

right-of-way across the Bradys’ property, which had been blocked by the Bradys, thus 

denying her access to her own property. In their answer, the Bradys denied that the 

right-of-way in question crossed their property, alleging that “the right-of-way described by 

[Ms. Hayes] in her complaint links [Ms. Hayes’] property with the public highway without 

going across properties of [the Bradys].” 

1

Ms Hayes is represented in this appeal by J. Burton Hunter, III. The Bradys 

are represented by Trena Williams. 

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The parties proceeded with discovery and filed cross motions for summary 

judgment, both of which were denied by the circuit court. Ms. Hayes filed a motion to 

amend the complaint, which was granted over objection; the amended complaint sought 

damages as well as injunctive relief, but did not assert any additional causes of action. On 

March 20, 2014, the case was tried to the circuit court on one theory only: that Ms. Hayes’ 

deed to her property contained a right-of-way across the Bradys’ property, said right-of-way 

originally established in a 1924 predecessor deed and contained in every deed thereafter. In 

this regard, it should be noted that, although the court had precluded Ms. Hayes from moving 

any exhibits into evidence as a sanction for her failure to provide an exhibit list, Ms. Hayes 

was not prejudiced because the circuit court took judicial notice of all the deeds in her chain 

of title. The Bradys contended that the language in the 1924 deed established nothing more 

than a personal license, not a right-of-way. 

At the conclusion of Ms. Hayes’ case-in-chief, the court granted the Bradys’ 

motion for judgment as a matter of law. In its order entered on September 29, 2014, the 

circuit court first quoted the relevant language from the November 7, 1924, deed from W.E. 

Boone to Robert Boone: 

The said parties of the first part also reserve the right of egress 

and regress over and through the above described tract of land 

to and from a tract of land now owned by them lying east of this 

tract. 

Painstakingly tracking Ms. Hayes’ chain of title from the 1924 Boone deed 

forward, the circuit court found that the first deed to contain any more descriptive language 

concerning the “right of egress and regress” was a deed from Gary Samples to Glenn 

Samples dated December 1, 1990: 

For the aforesaid consideration, there is further granted and 

conveyed unto the said party of the second part a right of way 

for ingress and egress from the Wilsontown Road to the tract 

herein conveyed over and across the present roadway, said right 

of way being heretofore conveyed to A.M. Samples in a deed 

from Okey Boone, et ux. . . . 

The circuit court noted that the exact language in the Samples deed was the language set 

forth in Ms. Hayes’ deed, dated June 21, 1994, wherein she purchased the property from 

Glenn Samples. 

The circuit court held that Ms. Hayes’ case failed because the language of the 

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1924 deed was insufficient as a matter of law to establish a right-of-way, as it contained no 

information as to the location of the right-of-way, its starting or ending points, or its 

dimensions; and it had no information as to physical and/or external markers from which 

such location could be inferred. “Given the utterly vague and ambiguous description 

contained within the deed, there is simply no indication of where the contemplated right of 

way once existed or if it is the same right-of-way now sought by [Ms. Hayes].” The circuit 

court acknowledged that Ms. Hayes’ deed specifically references a right-of-way from 

Wilsontown Road across the present roadway on the Bradys’ property, but held that Ms. 

Hayes’ grantor, Glenn Samples, “may not give away that which one does not have.” In short, 

Mr. Samples could not expand upon or enlarge the right-of-way originally conveyed from 

W. E. Boone to Robert Boone in 1924. 

At the conclusion of its order, the circuit court noted that “this ruling does not 

touch upon the issues of presumptive easement and easement by necessity. These issues 

were not pled or identified in [Ms. Hayes’] Complaint or Amended Complaint and are not 

properly before the Court at this time.” 

Ms. Hayes did not appeal the circuit court’s ruling. Instead, she retained 

counsel and, on November 25, 2014, filed a second lawsuit against the Bradys, Case No. 

14-C-123, titled “Civil Complaint and Motion for Relief Under Rule 60(b)(1).” In her 

complaint, Ms. Hayes alleged that the location of her right-of-way could be established 

“through documentary evidence, testamentary evidence, and a view of the property”; that if 

Ms. Hayes does not have a right-of-way, she could establish her entitlement to a way of 

necessity; and that she was entitled to relief from the judgment in the earlier case, No. 

13-C-29, because the court’s decision was based on the Bradys’ mistake or misrepresentation 

that “the Wilsontown Road was different than the Salem Ridge Road.” The Bradys filed a 

motion to dismiss, alleging that the matters set forth in the lawsuit were barred by the 

doctrine of res judicata. 

On April 27, 2015, following a hearing and review of the record in No. 

13-C-29, the court granted the Bradys’ motion to dismiss, finding that Ms. Hayes had a full 

and fair opportunity to litigate all of her claims in the earlier case and that the claims were 

therefore res judicata. The court further denied Ms. Hayes’ motion for relief under Rule 

60(b)(1) of the West Virginia Rules of Civil Procedure, finding that the alleged mistake or 

misrepresentation by the Bradys at trial “had no impact on the Court’s finding that the 

original attempted reservation in the [Boone] deed . . . was insufficient as a matter of law.” 

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This appeal followed.2 

With respect to the circuit court’s ruling on the Bradys’ motion to dismiss, 

“‘“[a]ppellate review of a circuit court’s order granting a motion to dismiss a complaint is 

de novo.” Syllabus point 3, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 

W. Va. 770, 461 S.E.2d 516 (1995).’ Syl. Pt. 1, Longwell v. Bd. of Educ. Of the Cnty. Of 

Marshall, 213 W. Va. 486, 583 S.E.2d 109 (2003).” Syl. pt. 5, Malone v. Potomac 

Highlands Airport Auth., No. 14-0849, 2015 WL 5928513, ___ W. Va. ___, ___ S.E.2d ___ 

(October 7, 2015). 

“The doctrine of res judicata is based on a recognized public policy to quiet 

litigation and on a desire that individuals should not be forced to litigate an issue more than 

once.” White v. SWCC, 164 W. Va. 284, 289, 262 S.E.2d 752, 756 (1980) (citing Marguerite 

Coal Co. v. Meadow River Lumber Co., 98 W. Va. 698, 127 S.E. 644 (1925)). The test to 

determine whether a lawsuit may be barred on the basis of res judicata was established by 

this Court in Blake v. Charleston Area Medical Center, Inc., 201 W. Va. 469, 498 S.E.2d 41 

(1997), wherein we held at Syllabus point 4 that, 

[b]efore the prosecution of a lawsuit may be barred on 

the basis of res judicata, three elements must be satisfied. First, 

there must have been a final adjudication on the merits in the 

prior action by a court having jurisdiction of the proceedings. 

Second, the two actions must involve either the same parties or 

persons in privity with those same parties. Third, the cause of 

action identified for resolution in the subsequent proceeding 

either must be identical to the cause of action determined in the 

prior action or must be such that it could have been resolved, 

had it been presented, in the prior action. 

In the instant case, the first two elements are beyond dispute; the only question 

for resolution is whether the causes of action asserted by Ms. Hughes in Case No. 14-C-123 

were identical to those in the earlier case, No. 13-C-29, or were such that they could have 

been presented in the earlier case. See, e.g., State ex rel. Small v. Clawges, 231 W. Va. 301, 

745 S.E.2d 92 (2013) (finding plaintiffs’ claims should have been raised as a compulsory 

2

For reasons that are not clear, subsequent to filing his notice of appeal with 

this Court on May 22, 2015, Ms. Hayes’ counsel filed a motion for reconsideration with the 

court below. The record does not indicate that the court ever acted on this motion, having 

no jurisdiction to do so during the pendency of the instant appeal. 

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counterclaim in earlier federal court proceedings and were therefore barred by res judicata 

in subsequent state court suit); Beahm v. 7-Eleven, Inc., 223 W. Va. 269, 276, 672 S.E.2d 

598, 605 (2008) (observing that, although plaintiffs’ claims of nuisance and trespass had not 

been raised in earlier federal court suit, claims nonetheless were barred because “they arose 

out of the same core of operative facts as all of the other claims [in the federal suit].”); Syl. 

pt. 3, Downing v. Ashley, 193 W. Va. 77, 454 S.E.2d 371 (1994) (Per curiam) (holding, in 

part, that res judicata is a bar “not only as to the matters actually determined, but as to every 

other matter which the parties might have litigated as incident thereto and coming within the 

legitimate purview of the subject-matter of the litigation” (internal quotations and citations 

omitted)). 

Ms. Hayes argues that her case falls within one or more exceptions to the 

general rule governing application of the doctrine of res judicata. First, she contends that 

because “the two cases require substantially different evidence to sustain them, the second 

cannot be said to be the same cause of action and barred by res judicata.” White, 164 W. Va. 

at 290, 284 S.E.2d at 756. We disagree that Ms. Hayes’ case falls within this exception. All 

of the causes of action in the two suits relate to one core issue: does Ms. Hayes have an 

enforceable right, whether by virtue of her deed or otherwise, to utilize a private road on the 

Bradys’ property in order to access her own property? Regardless of whether some 

additional evidence might be required to prove way of necessity or prescriptive easement, 

theories of recovery not raised in the first suit, that evidence cannot be fairly said to be 

“substantially different” so as to permit Ms. Hayes to hale the Bradys into court to relitigate 

the core issue adjudicated in the initial suit. Id. 

Second, Ms. Hayes argues the trial judge in her initial case effectively 

foreclosed any res judicata defense in the second case by specifically noting that its “ruling 

does not touch upon the issues of prescriptive easement and easement by necessity. . . ,” as 

those issues were not pled and were therefore not before the court. This argument requires 

little discussion. We do not read the language in the court’s order to be an invitation for Ms. 

Hayes to file another lawsuit against the Bradys, let alone a prejudgment of the Bradys’ 

anticipated defense thereto. 

Third, Ms. Hayes contends that res judicata should not bar her claims in the 

second suit because the Bradys were guilty of fraud, mistake, concealment, or 

misrepresentation in the initial suit. Specifically, Ms. Hayes claims that the Bradys’ attorney 

“proffered”3 to the circuit court, at some point prior to or during the trial, that there were two 

3

From the record before us, this Court cannot ascertain the basis upon which 

(continued...) 

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separate roads from which Ms. Haynes could arrange ingress and egress, whereas, in fact, 

Salem Ridge Road and Wilsontown Road are one and the same. Had the court understood 

this, Ms. Hayes argues, it would have decided the initial case in her favor.4 Again, we 

disagree. There is no evidence in the appendix record that the Bradys’ attorney ever made 

such a “proffer,” and, even if she had, the existence of the road or roads in question was 

wholly irrelevant to the court’s decision, which was based solely on the language in the 1924 

deed. In any event, while Ms. Hayes’ “proffer” argument is relevant to the Rule 60(b)(1) 

issue, which is discussed in more detail below, it is not relevant to the res judicata issue. As 

this Court has noted, 

an exception to the preclusion of claims that previously could 

have been determined exists where the party bringing the 

subsequent lawsuit claims that fraud, mistake, concealment, or 

misrepresentation by the defendant of the second suit prevented 

the subsequent plaintiff from earlier discovering or litigating 

his/her claims. 

Blake, 201 W. Va. at 477, 498 S.E.2d at 49 (emphasis added; citations omitted). In the 

instant case, Ms. Hayes makes no claim that the evidence she seeks to introduce was 

unavailable or unknown to her in the initial case as a result of anything the Bradys did. 

Therefore, the alleged “proffer” by the Bradys, even if established, does not bring this case 

within the fraud exception to the doctrine of res judicata. 

Fourth, and finally, Ms. Hayes contends that res judicata should not bar her 

claims in the second suit because she was a pro se litigant in the initial case and did not have 

the skill and expertise to properly present her case. The court below addressed this 

contention in his order granting the Bradys’ motion to dismiss and denying Ms. Hayes’ Rule 

60(b) motion for relief from judgment: 

3

(...continued) 

Ms. Hayes’ counsel describes these alleged statements as a proffer; the court granted 

judgment as a matter of law at the conclusion of Ms. Hayes’ case-in-chief, and, thus, the 

Bradys never put on any evidence by proffer or otherwise. See generally State ex rel. Miller 

v. Parker, 231 W. Va. 65, 70, 743 S.E.2d 876, 881 (2013) (discussing proffers and collecting 

cases). 

4

Although it is not entirely clear from either the written or oral arguments of 

the parties, it appears that any factual dispute concerning roads is relevant to whether or not 

Ms. Hayes’ property is in fact landlocked. In the Bradys’ pleadings in the initial case, they 

stated, without explanation, that Ms. Hayes had alternate means of access to her property. 

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In the [initial] case, the Court took the necessary steps 

and made reasonable accommodations to ensure that the matter 

was adjudicated on the merits. [Ms. Hayes] presented her 

case-in-chief at trial and attempted to establish that she was 

conveyed an easement over [the Bradys’] property. The Court 

took judicial notice of the deeds associated with [Ms. Hayes’] 

chain of title. The Court cannot instruct [Ms. Hayes] on what 

legal theories to pursue, what witnesses to call, or what 

questions to ask. [Ms. Hayes’] unfamiliarity with legal 

proceedings is a natural risk of proceeding without an attorney. 

Under the facts and circumstances of this case, we agree with the circuit court’s 

reasoning. Although it cannot be denied that a pro se litigant is at a disadvantage when 

litigating a case against a party represented by counsel, the record in this case does not 

support a finding that Ms. Hayes did not have a fair trial in the initial case. 

With respect to the circuit court’s ruling on Ms. Hayes’ Rule 60(b)(1) motion 

for relief from judgment, this Court has held that “‘[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.’ Syllabus Point 5, Toler v. Shelton, 157 W. Va. 778, 204 

S.E.2d 85 (1974).” Syl. pt. 1, Builders’ Serv. & Supply Co. v. Dempsey, 224 W. Va. 80, 680 

S.E.2d 95 (2009). 

The relevant portions of Rule 60(b) of the West Virginia Rules of Civil 

Procedure provide that 

[o]n 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 . . . (3) fraud (whether heretofore 

denominated intrinsic of extrinsic), misrepresentation, or other 

misconduct of an adverse party. . . . 

In this case, Ms. Hayes again claims that the Bradys’ attorney’s alleged proffer with respect 

to the existence of two separate roads constitutes mistake, at best, and misrepresentation 

and/or fraud, at worst. Further, Ms. Hayes again claims that, absent this mistake, 

misrepresentation, and/or fraud, the trial judge would have realized that her property is 

landlocked and would have ruled in her favor. 

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We begin by noting that Ms. Hayes raised her Rule 60(b) claims not by motion, 

but by an independent action.5 This Court has held that “[t]he definition of an independent 

action as contemplated in W. Va. R. Civ. P. 60(b) is an equitable action that does not 

relitigate the issues of the final judgment order or proceeding from which relief is sought and 

is one that is limited to special circumstances.” Syl. pt. 2, N.C. v. W.R.C., 173 W. Va. 434, 

317 S.E.2d 793 (1984). We also have held: 

“In order to obtain relief from a final judgment order or 

proceeding through an independent action, the independent 

action must contain the following elements: (1) the final 

judgment, order or proceeding from which relief is sought must 

be one that, in equity and good conscience, should not be 

enforced; (2) the party seeking relief should have a good defense 

to the cause of action upon which the final judgment order or 

proceeding is based; (3) there must have been fraud, accident or 

mistake that prevented the party seeking relief from obtaining 

the benefit of his defense; (4) there must be absence of fault or 

negligence on the part of the party seeking relief; and (5) there 

must be no adequate legal remedy.” Syllabus point 3, N.C. v. 

W.R.C., 173 W. Va. 434, 317 S.E.2d 793 (1984). 

Syl. pt. 2, Downing v. Ashley, 193 W. Va. 77, 454 S.E.2d 371. 

Reviewing the facts of this case under the standards set forth in N.C. and 

Downing, we conclude that the court below did not abuse its discretion in denying Ms. 

Hayes’ request for relief from the judgment entered in the initial case, No. 13-C-29. As 

discussed earlier, whether or not Salem Ridge Road and Wilsontown Road were one and the 

same was completely irrelevant to the circuit court’s decision, which was based solely on the 

language contained in the 1924 deed from W.E. Boone to Robert Boone.6 Under the facts 

and circumstances of this case, we conclude that here, as in Downing, “the elements for 

proceeding with an independent action are not met. The order below is not unconscionable. 

5

Rule 60(b) provides, in part, that “[w]rits of coram nobis, coram vobis, 

petitions for rehearing, bills of review and bills in the nature of a bill of review are abolished, 

and the procedure for obtaining any relief from a judgment shall be by motion as prescribed 

by these rules or by an independent action.” (Emphasis added). 

6

Whether or not the circuit court’s ruling was correct is immaterial, as “[a]n 

erroneous ruling of the court will not prevent the matter from being res judicata.” Blake, 201 

W. Va. at 477, 498 S.E.2d at 49 (internal quotations and citations omitted). 

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More importantly, the plaintiff failed to appeal the portions of the [2014] order, which she 

now raises. This suit cannot be brought in lieu of an appeal to this Court.” 193 W. Va. at 

81, 454 S.E.2d at 375 (emphasis added). Further, 

[t]hese facts not only invalidate the claim as an 

independent action, but also bar this suit under the doctrine of 

res judicata. . . . 

. . . All issues raised in the case at bar were either 

actually determined by the earlier suit or should have been fully 

litigated, including an appeal to this Court, at that time. 

Id. at 81, 454 S.E.2d at 375. 

We decline to address the third issue raised by Ms. Hayes, denial of due 

process and equal protection, as her “argument” on this issue consisted solely of typing out 

the texts of the Fifth and Fourteenth Amendments to the United States Constitution. Rule 

10(c)(7) of the West Virginia Rules of Appellate Procedure requires that, 

[t]he brief must contain an argument exhibiting clearly 

the points of fact and law presented, the standard of review 

applicable, and citing the authorities relied on . . .[, and] must 

contain appropriate and specific citations to the record on 

appeal[.] The Court may disregard errors that are not adequately 

supported by specific references to the record on appeal. 

Additionally, in an Administrative Order entered December 10, 2012, “Re: 

Filings That Do Not Comply With the Rules of Appellate Procedure,” Chief Justice Menis 

E. Ketchum specificallynoted that “[b]riefs that lack citation of authority [or] fail to structure 

an argument applying applicable law” are not in compliance with this Court’s rules. Further, 

“[b]riefs with arguments that do not contain a citation to legal authority to support the 

argument presented and do not ‘contain appropriate and specific citations to the record on 

appeal, . . .’ as required by rule 10(c)(7)” are not in compliance with this Court’s rules. Here, 

Ms. Hayes’ brief is inadequate with respect to the constitutional issue, as it fails to comply 

with the Rules of Appellate Procedure and this Court’s Administrative Order. Thus, we 

decline to address this assignment of error as it was not properly developed on appeal. 

In summary, we conclude that Ms. Hayes failed to present evidence sufficient 

to bring her case within any recognized exceptions to the doctrine of res judicata and that the 

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court below did not abuse its discretion in denying her request for relief under Rule 60(b). 

Accordingly, we affirm the judgment of the Circuit Court of Upshur County. 

Affirmed. 

ISSUED: June 8, 2016 

CONCURRED IN BY: 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING AND WRITING SEPARATELY: 

Chief Justice Ketchum, dissenting: 

I dissent from the majority’s finding that res judicata bars the plaintiff’s 

lawsuit. Her two lawsuits did not allege the “same cause of action” because they involve 

completely different evidence. Further, the majority’s strict enforcement of res judicata 

plainly defeats the ends of justice. 

In her first lawsuit, the pro se plaintiff asked the court to prohibit the defendant 

from blocking the road to her land, one she had used for many years. This first lawsuit was 

based on an alleged express easement contained in her deeds. As the majority states: “the 

case was tried . . . on one theory only: that [plaintiff’s] deed to her property contained a rightof-law across the [defendants’] property[.]” (Emphasis added). The plaintiff’s first lawsuit 

did not include a claim for an implied easement, i.e., a way of necessity or prescriptive 

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easement. Indeed, the circuit court noted that its ruling against the plaintiff “does not touch 

upon the issues of [prescriptive] easement and easement by necessity.” 

In the second lawsuit, the plaintiff sought relief based on an implied easement. 

The majority finds this second lawsuit is barred by res judicata. There are two reasons res 

judicata does not bar the plaintiff’s second lawsuit: 

1) In Blake v. CAMC, 201 W.Va. 469, 476, 498 S.E.2d 41, 48 (1997), our Court 

clearly stated that: “if the two cases require substantially different evidence to sustain them, 

the second cannot be said to be the same cause of action and barred by res judicata.” 

(Quotations and citations omitted). 

The plaintiff’s first lawsuit only required the interpretation of the deeds in her 

chain of title. However, the evidence in her second lawsuit has nothing to do with her chain 

of title. The plaintiff’s second lawsuit was based on implied easements, i.e., a prescriptive 

easement or way of necessity. Prescriptive easements deal with evidence on how long a party 

has used a roadway. Ways of necessity deal with evidence as to the complete lack of access 

to a party’s land. Again, neither involve evidence regarding an express easement contained 

in a deed. 

2) Blake v. CAMC also makes clear that “even though the requirements of res 

judicata may be satisfied, we do not rigidly enforce [this doctrine] where to do so would 

plainly defeat the ends of justice.” Id. at 478, 498 S.E.2d at 50 (quotations and citations 

omitted). 

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The plaintiff is being unfairly deprived of a road to her property that she has 

used for many years. There are claims that this road is the only access she has to her 

property. Justice plainly requires that she be allowed to present evidence of a prescriptive 

easement or way of necessity. 

In short, the evidence required to prove the plaintiff’s second lawsuit seeking 

an implied easement is completely different from the evidence required to prove an express 

easement sought in the first lawsuit. Furthermore, justice requires that the plaintiff be 

allowed to submit evidence of an implied easement. 

Therefore, I dissent. 

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