Banbury Holdings, LLC v. May
| Decision Date | 08 November 2019 |
| Docket Number | No. 18-0550,18-0550 |
| Citation | 837 S.E.2d 695 |
| Parties | BANBURY HOLDINGS, LLC, Plaintiff Below, Petitioner v. Robert W. MAY, Defendant Below, Respondent |
| Court | West Virginia Supreme Court |
Charles F. Printz, Jr., Esq., J. Tyler Mayhew, Esq., Bowles Rice LLP, Martinsburg, West Virginia, Counsel for the Petitioner
Wm. Richard McCune, Jr., Esq., Wm. Richard McCune, PLLC, Alex A. Tsiatsos, Esq., Tsiatsos Law Firm, PLLC, Martinsburg, West Virginia, Counsel for the Respondent
This matter1 is an appeal from an order from the Circuit Court of Berkeley County denying Petitioner Banbury Holdings, LLC's renewed motion for summary judgment and granting declaratory relief. In its order, the circuit court found that a judgment order entered in prior litigation2 in which Banbury Holdings, LLC was a party, and recorded in the Office of the Clerk of the County Commission of Berkeley County, West Virginia, ran with the land3 and was binding upon Banbury Holdings, LLC and all its successors in title.
In its appeal, Banbury Holdings, LLC asserts the judgment order issued in the Injunction Proceeding was void ab initio, and could not be enforced against it4 . However, Banbury Holdings, LLC intervened in the Injunction Proceeding in the place of the party that it now claims was not joined, and obtained a favorable ruling.
We have reviewed the briefs, the record, and the pertinent legal authorities, and affirm the judgment of the circuit court.
By deed dated March 4, 2005, Mark-Banbury, LLC acquired property in Berkeley County, West Virginia, containing 230.58568 acres, which it thereafter began developing as The Lakes. On the same date, Mark-Banbury, LLC granted a credit line deed of trust on The Lakes to Mercantile Mortgage Corporation5 . Robert W. May6 owns a piece of property across the road from The Lakes, containing 38.41 acres. As a condition of construction of The Lakes, Mark-Banbury, LLC was required by the Berkeley County Planning Commission to construct certain storm-water management facilities. Without permission, Mark-Banbury, LLC, entered on to May's land, constructed a storm-water management facility, and began draining water across May's land.
On December 8, 2010, May brought the Injunction Proceeding against Mark-Banbury, LLC and later amended his petition to include Lawrence I. Rosenberg, managing member of Mark-Banbury, LLC, as a defendant. By judgment order entered August 5, 2013, the circuit court awarded judgment in the Injunction Proceeding in favor of May and against both Mark-Banbury, LLC and Rosenberg.
In that order, the circuit court awarded damages and an injunction prohibiting Mark-Banbury, LLC and Rosenberg from future development of The Lakes until the encroachment on May's property was removed, flooding and damages were stopped, and further storm-water management was undertaken. That judgment order was subsequently recorded in the appropriate records in the Office of the County Commission of Berkeley County.
At no point during the pendency of the Injunction Proceeding were Mercantile Mortgage Corporation or PNC Bank named as defendants. Nonetheless, after entry of the judgment order in the Injunction Proceeding, PNC Bank assigned the credit line deed of trust to Banbury Holdings, LLC on April 30, 2014.
Once it had been assigned PNC Bank's interest in the credit line deed of trust, Banbury Holdings, LLC declared a default and proceeded to a trustee's sale of The Lakes, which took place on September 12, 2014. Banbury Holdings, LLC sent notice of the sale to both May and May's counsel. Upon receiving this notice, May filed an emergency motion in the Injunction Proceeding to preserve the injunction. After May filed his motion, Banbury Holdings, LLC entered an appearance in the Injunction Proceeding on September 9, 2014. A hearing on May's emergency motion was held in the circuit court on September 11, 2014 – one day prior to the trustee's sale. Banbury Holdings, LLC appeared at that hearing and argued its position that the injunction should be dissolved7 . Following that hearing, the circuit court found May's motion to be premature, denying it without prejudice. Thereafter, the trustee's sale took place as scheduled on September 12, 2014, and Banbury Holdings, LLC purchased The Lakes.
On January 3, 2017, Banbury Holdings, LLC filed this Collateral Proceeding for declaratory judgment8 , requesting that the circuit court "declare that the Judgment Order [in the Injunction Proceeding] is void, invalid and of no effect as to ... Banbury Holdings, LLC and its successors in title; [and] declare that the Judgment Order does not bind or otherwise run with the land that is the subject of this civil action." Banbury Holdings, LLC filed a motion for summary judgment, which was denied, and the circuit court allowed discovery to proceed.
On June 5, 2017, six months after filing this Collateral Proceeding, Banbury Holdings, LLC filed its petition in the Injunction Proceeding seeking dissolution or modification of the judgment order to allow development of portions of The Lakes that did not drain water on to May's property.
On September 7, 2017, the circuit court held a hearing on Banbury Holdings, LLC's petition to dissolve or modify, during which Banbury Holdings, LLC offered its expert engineer's opinions on water drainage issues. Upon hearing this testimony, the circuit court appointed its own expert and ordered him to conduct an investigation and file a written report on these drainage issues. That report was received by the circuit court on November, 2, 2017, and the court agreed with Banbury Holdings, LLC's expert that only certain portions of The Lakes drained onto May's property. On November 21, 2017, the circuit court entered an order in the Injunction Proceeding granting, in part, Banbury Holdings, LLC's petition to modify the injunction, allowing the development of the portion of The Lakes that does not drain onto May's property. This order was entered "nunc pro tunc in all respects" to August 5, 2013, the date that the original judgment order was entered in the Injunction Proceeding.
On February 1, 2018, Banbury Holdings, LLC renewed its motion for summary judgment in this Collateral Proceeding, and the parties agreed there was "no triable question of fact" and requested that the circuit court "decide this matter based upon the record before it as developed through the parties' briefing."
In its Order Denying Plaintiff's Renewed Motion for Summary Judgment and Declaratory Order, the circuit court noted that when May filed his emergency motion in the Injunction Proceeding seeking to preserve the injunction and have it declared permanent, Banbury Holdings, LLC filed a notice of appearance and a responsive pleading, and thereafter appeared by counsel to participate in oral argument – one day prior to the trustee's sale. Banbury Holdings, LLC's counsel appeared at the hearing on that motion and was permitted to participate. After the circuit court decided to "neither extend nor dissolve the injunction," Banbury Holdings, LLC purchased The Lakes at the foreclosure sale. The circuit court also found that Banbury Holdings, LLC's notice of the recorded judgment order, "of which it voluntarily inserted itself in the litigation of, causes it to be subject to the injunctive relief found in said [j]udgment [o]rder ...." It is from entry of this order that Banbury Holdings, LLC seeks relief from this Court.
"A circuit court's entry of a declaratory judgment is reviewed de novo. " Syllabus Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995) ; see also Syllabus Point 2, Blankenship v. City of Charleston , 223 W. Va. 822, 823, 679 S.E.2d 654, 655 (2009). ’ Blankenship v. City of Charleston , 223 W. Va. 822, 824-25, 679 S.E.2d 654, 656–57 (2009) (citation of Cox clarified).
At oral argument, May urged this Court to apply estoppel to Banbury Holdings, LLC's position on appeal and directed this Court to Syllabus Point 6 of Bettman v. Harness , 42 W. Va. 433, 26 S. E. 271 (1896). Bettman applied estoppel in pais – equitable estoppel. Id. We disagree with May's contention that Bettman controls the estoppel doctrine applicable in this matter. However, equitable estoppel is just one estoppel doctrine. See Robin J. Davis & Louis J. Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure § 8(c) (Supp. 2018). Collateral estoppel, promissory estoppel, estoppel by record, estoppel by deed, and judicial estoppel are also recognized under West Virginia law. See West Virginia Dept. of Transp., Div. of Highways v. Robertson , 217 W. Va. 497, 503, 618 S.E.2d 506, 512 (2005) ; see also Litigation Handbook on West Virginia Rules of Civil Procedure § 8(c) (Supp. 2018).
Though we disagree with May's assertion that equitable estoppel applies to this appeal, we nonetheless invoke judicial estoppel, sua sponte , as "judicial estoppel is an equitable doctrine invoked by a court at its discretion." Robin J. Davis & Louis J. Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure § 8(c) (Supp. 2018).
Judicial estoppel bars a party from re-litigating an issue when: (1) the party assumed a position on the issue that is clearly inconsistent with a position taken in a previous case, or with a position taken earlier in the same case; (2) the positions were taken in proceedings involving the same adverse party; (3) the party taking the inconsistent positions received some benefit from his/her original position; and (4) the original position misled the adverse party so that allowing the estopped party to change his/her position would injuriously affect the...
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McCoy v. Dragisich, 19-0018
...basis for itsjudgment.") Syllabus Point 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965).Banbury Holdings, LLC v. May, 242 W. Va. 634, ___ n.4, 837 S.E.2d 695, 701 n.4 (2019). Based on the evidence presented in the parties' briefs and in the appendix record, we find that althoug......