STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS 

### FILED

November 6, 2015

RORY L. PERRY II, CLERK Terry Amaker and Sonya Amaker, SUPREME COURT OF APPEALS

OF WEST VIRGINIA Defendants Below, Petitioners

vs) No. 15-0203 (Berkeley County 13-C-797)

Hammond’s Mill Homeowners Association, Inc., Plaintiff Below, Respondent

MEMORANDUM DECISION

Petitioners Terry Amaker and Sonya Amaker, pro se , appeal the June 29, 2015, amended final order of the Circuit Court of Berkeley County granting summary judgment to Respondent Hammond’s Mill Homeowners Association, Inc. The circuit court ruled that (1) petitioners must remove a fence from respondent’s property; (2) if petitioners do not remove the fence, respondent may remove it and assess costs against petitioners; (3) respondent may also remove the landscaping associated with the fence; (4) petitioners are enjoined from erecting a new fence on respondent’s property; (5) petitioners must reimburse $175 to respondent for the survey that determined the property lines; and (6) petitioners must reimburse respondent $33,887.03 in attorney’s fees. 1 Respondent, by counsel Kenneth J. Barton, Jr., Austin M. Hovermale, and Amber

M. Moore, filed a response.

The Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these

1 The original final order was entered on February 17, 2015, and contained a clerical error because it erroneously recited “Lot 48” instead of the correct “Lot 92.” On May 14, 2015, the circuit court requested that this Court remand this case for the limited purpose of entering an amended order correcting the error. This Court granted the circuit court’s request and remanded the case for the entry of the June 29, 2015, amended final order by an order entered on May 27, 2015. Because the orders are otherwise identical, we refer only to the amended final order except where necessary. See discussion infra.

1reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioners, husband and wife, own Lot 92 within the Hammond’s Mill subdivision in Berkeley County, West Virginia. Petitioners and respondent, the subdivision’s homeowners association, became involved in a dispute as to whether the fence petitioners erected in their backyard encroached on a common area, which belonged to respondent.

Petitioners retained an attorney who wrote respondent on April 24, 2013, demanding that respondent not engage in self-help and remove the fence. After receiving the April 24, 2013 letter, respondent retained an attorney who subsequently wrote petitioners on August 20, 2013, explaining that the fence was in violation of the subdivision’s restrictive covenants, requesting that petitioners remove the fence from respondent’s property, and advising that if the fence was not removed, respondent would file an action to enforce the restrictive covenants and that any such action would include a claim for reimbursement of attorney’s fees and costs pursuant to the

restrictive covenants. 2 Petitioners did not respond to the August 20, 2013, letter or remove the

fence.

Respondent filed the instant action against petitioners on November 1, 2013, in the Circuit Court of Berkeley County. Respondent subsequently filed a motion for summary judgment, which the circuit court granted in its amended final order. In an earlier order, entered on December 1, 2014, the circuit court found that mediation had narrowed the issues in controversy:

[Petitioners] admitted to the Court that their fence is built on [respondent’s] land and represented to the Court that [petitioners] will bear the full cost to remove the fence from [respondent’s] land. Therefore, the remaining issue is whether [respondent] is entitled to be reimbursed for costs and fees incurred in enforcing the Restrictive Covenants against [petitioners].

On January 8, 2015, the circuit court held an evidentiary hearing on respondent’s claim to be reimbursed for attorney’s fees and costs. Thereafter, the circuit court entered its amended final order granting respondent’s motion for summary judgment, ruling that: (1) petitioners must remove their fence from respondent’s property; (2) if petitioners do not remove the fence, respondent may remove it and assess costs against petitioners; (3) respondent may also remove the landscaping associated with the fence; (4) petitioners are enjoined from erecting a new fence on respondent’s property; (5) petitioners must reimburse $175 to respondent for the survey that determined the property lines; and (6) petitioners must reimburse respondent $33,887.03 in attorney’s fees.

Petitioners now appeal the circuit court’s June 29, 2015, amended final order granting

2 The April 24, 2013, letter requested direct communication with petitioners rather than their attorney.

2summary judgment to respondent. 3 In Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189, 190, 451 S.E.2d 755, 756 (1994), this Court held that “[a] circuit court’s entry of summary judgment is

reviewed de novo. ” Pursuant to Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment shall be granted provided that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Furthermore, “[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party[.]” Syl. Pt. 4, in part, Painter , 192 W.Va. at 190, 451 S.E.2d at 756.

We find that the circuit court’s amended final order adequately resolves all issues raised by petitioners except for the three issues that we now address. First, petitioners note that the original final order identified the wrong lot as being owned by them. We determine that this issue was resolved by the entry of the amended final order which corrected that clerical error. While the circuit court entered the amended final order after petitioners had appealed this matter, our May 27, 2015, order allowed the entry of a corrected order.

Second, petitioners asserted that their counsel did not provide them with effective assistance. Respondent counters that, in civil cases, there is no constitutional guarantee of effective

assistance of counsel. See Franklin D. Cleckley, Robin Jean Davis, and Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure , § 59(a), at 1279 (4 th ed. 2012) (“A civil litigant does not have a constitutional or statutory right of effective assistance of counsel in a civil case.”). We agree with respondent and find that this issue lacks merit.

Third, petitioners assert that respondent proceeded against them because of racial animus based on the fact that, according to petitioners, respondent filed a similar action against another minority family. 4 We note that each case must be decided on its own facts and petitioners do not dispute the circuit court’s finding that their fence was on respondent’s property. Therefore, we find

that this issue lacks merit.

Having reviewed the circuit court’s June 29, 2015, amended final order, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to all other issues raised by petitioners in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision. We conclude that the circuit court did not err in granting summary judgment to respondent.

3 The circuit court entered a stay of its final order on condition that petitioners post a bond for the full judgment amount within ten days. Petitioners did not post such a bond; accordingly, the stay expired, by its own terms, after ten days. By a letter received on August 5, 2015, petitioners informed this Court that respondent had the fence and associated landscaping removed from its property on July 30, 2015.

4 Petitioners indicate that they are African-American.

3For the foregoing reasons, we affirm the June 29, 2015, amended final order granting summary judgment to respondent.

Affirmed.

ISSUED: November 6, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis Justice Brent D. Benjamin

Justice Menis E. Ketchum Justice Allen H. Loughry II

4