Zimmerer v. Romano
Citation | 679 S.E.2d 601 |
Decision Date | 30 April 2009 |
Docket Number | No. 34269.,34269. |
Parties | Ann Morgan ZIMMERER and Gerald Lee Zimmerer, Plaintiffs Below, Appellants, v. Mark E. ROMANO, Robin J. Romano; and West Virginia Department of Transportation, Division of Highways, Defendants Below, Appellees. |
Court | Supreme Court of West Virginia |
Syllabus by the Court
1. "A circuit court's entry of summary judgment is reviewed de novo." Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. " Syllabus point 1, Alden v. Harpers Ferry Police Civil Service Commission, 209 W.Va. 83, 543 S.E.2d 364 (2001).
3. " Syllabus point 1, State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005).
4. Syllabus point 1, Sally-Mike Properties v. Yokum, 175 W.Va. 296, 332 S.E.2d 597 (1985).
5. Syllabus point 5, Hall v. Hartley, 146 W.Va. 328, 119 S.E.2d 759 (1961).
6. "For ascertainment of the intent of the parties to a deed, in which the description of the subject matter is inconsistent, contradictory, and ambiguous, extrinsic evidence is admissible." Syllabus point 1, State v. Herold, 76 W.Va. 537, 85 S.E. 733 (1915).
7. Syllabus point 2, Snider v. Robinett, 78 W.Va. 88, 88 S.E. 599 (1916).
8. " ." Syllabus point 5, Cottrill v. Ranson, 200 W.Va. 691, 490 S.E.2d 778 (1997).
9. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syllabus point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).
10. "Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syllabus point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).
11. "Applying the plain language of the statute, abutting landowners must receive preferential treatment when purchasing state property pursuant to W. Va.Code, 17-2A-19 (1988)." Syllabus point 3, in part, Mills v. Van Kirk, 192 W.Va. 695, 453 S.E.2d 678 (1994).
12. Syllabus point 3, McCoy v. VanKirk, 201 W.Va. 718, 500 S.E.2d 534 (1997).
13. "Statutes which relate to the same subject matter should be read and applied together so that the Legislature's intention can be gathered from the whole of the enactments." Syllabus point 3, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).
14. "The general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled." Syllabus point 1, UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984).
Ancil G. Ramey, Hannah B. Curry, Steptoe & Johnson PLLC, Charleston, WV, for Appellants, Ann Morgan Zimmerer and Gerald Lee Zimmerer.
Gregory A. Tucker, Gregory A. Tucker, P.L.L.C., Summersville, WV, for Appellees, Mark E. and Robin J. Romano.
G. Alan Williams, Robert B. Paul, WVDOT, Division of Highways, Charleston, WV, for Appellee, West Virginia Department of Transportation, Division of Highways.
The plaintiffs below and appellants herein, Ann Morgan Zimmerer and Gerald Lee Zimmerer1 (hereinafter referred to separately as "Mrs. Zimmerer" and "Gerald Zimmerer," or collectively as the "Zimmerers"), appeal from an order entered October 12, 2007, by the Circuit Court of Nicholas County. By that order, the circuit court denied the Zimmerers' motion for reconsideration of the circuit court's previous order granting summary judgment to the defendants below and appellees herein, Mark E. Romano and Robin J. Romano (hereinafter referred to collectively as the "Romanos"). The order granting summary judgment to the Romanos was entered June 4, 2007. By that order, the circuit court found that the Romanos were the owners in fee simple of 20.29 acres of land, and further, that the defendant below and appellee herein, the West Virginia Department of Transportation, Division of Highways (hereinafter referred to as the "DOH") properly sold a 1.18 acre tract of its right of way interests to the Romanos. Based upon the parties' arguments,2 the record designated for our consideration, and the pertinent authorities, we affirm, in part, and reverse, in part, the decisions of the circuit court, and remand this matter to the circuit court.
This case involves a property dispute over the ownership in fee simple of 20.29 acres of land, as well as the proper right of way ownership of 1.18 acres of land.3 The property in question was originally part of an 82.65 acre farm in Nicholas County, West Virginia, which had been owned for generations by the Hill family. The 82.65 acre tract of land owned by the Hill family adjoined another ancestral farm, which had been owned by the Zimmerers' family for generations, and remains in the possession of the Zimmerers. There is no challenge to the Zimmerers' current ownership of the Zimmerer family's ancestral farm. Rather, the controversy arises over the ownership rights to the 20.29 acre tract, along with the 1.18 acre right of way contained therein, which was part of the original Hill family's 82.65 acre ancestral farm.
In 1971, pursuant to an eminent domain action, the DOH was vested with a right of way interest4 in three separate tracts of land that was part of the Hills' 82.65 acre farm. The rights of way were for the purpose of constructing and improving United States Route 19. The three parcels of land in which the DOH obtained a right of way interest totaled 20.29 acres, and is the land whose ownership is in question before this Court.5 The two issues before this Court are: (1) the fee simple ownership of the 20.29 acres of land, and (2) the propriety of the DOH's decision to sell 1.18 acres of its right of way interests to the Romanos.6
By deed dated April 6, 1995, the Hill family7 conveyed the ancestral farm to Greenwood Timber, Inc. (hereinafter referred to as "Greenwood Timber").8 The deed stated "the [Hills] do hereby grant, sell, and convey unto [Greenwood Timber] with Covenants of General Warranty of Title the surface only of that certain tract or parcel of land...." The language is followed by a description of the boundaries of the property, which culminates in the statement that the land described "contain[s] 82.65 acres, more or less." Subsequent to the boundary summary, the deed states that "there is reserved from the above description that previous outconveyance to the West Virginia Department of Highways of 20.29 acres, leaving a residue of 62.36 acres, more or less."...
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...“we apply a de novo standard of review to [a] circuit court's interpretation of [a] contract.” Zimmerer v. Romano, 223 W.Va. 769, 777, 679 S.E.2d 601, 609 (2009) (per curiam) (citation omitted). Finally, we must determine the pivotal question of law presented by the case sub judice: whether......
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