Birchfield v. Zen's Dev., LLC

• Decision Date: 16 April 2021
• Docket Number: No. 20-0075,20-0075
• Citation: 857 S.E.2d 422
• Court: West Virginia Supreme Court
• Parties: Sarah L. BIRCHFIELD, Petitioner v. ZEN'S DEVELOPMENT, LLC, Uptown Properties, LLC, & Kenneth W. McBride, Jr., Respondents

857 S.E.2d 422

Sarah L. BIRCHFIELD, Petitioner

v.ZEN'S DEVELOPMENT, LLC, Uptown Properties, LLC, & Kenneth W. McBride, Jr., Respondents

No. 20-0075

Supreme Court of Appeals of West Virginia.

Submitted: March 17, 2021

Filed: April 16, 2021

Mark A. Sadd, Esq., Angela C. Ramsey, Esq., Lewis Glasser PLLC, Charleston, West Virginia, Counsel for Petitioner.

J. Victor Flanagan, Esq., Daniel J. Burns, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Beckley, West Virginia, Counsel for Respondent, Zen's Development, LLC.

Chip E. Williams, Esq., Jared C. Underwood, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Beckley, West Virginia, Counsel for Respondent, Uptown Properties, LLC.

Gerald Hayden, Esq., Hayden & Associates, LC, Beckley, West Virginia, Counsel for Respondent, Kenneth W. McBride, Jr.

ARMSTEAD, Justice:

This appeal concerns a party wall agreement between adjoining property owners in Beckley, West Virginia. Petitioner, Sarah L. Birchfield ("Petitioner"), owns a commercial building that shares a party wall with the adjacent property. The three Respondents, Zen's Development, LLC ("Respondent Zen's"), Uptown Properties, LLC ("Respondent Uptown"), and Kenneth McBride, Jr. ("Respondent McBride"), are the current or previous owners of the adjacent property. Petitioner's lawsuit against these three Respondents included claims for negligence and breach of the party wall agreement. The circuit court granted summary judgment to all three Respondents on the breach of the party wall agreement claim, and it granted summary judgment to Respondent Uptown and Respondent McBride on Petitioner's negligence claim.

On appeal, Petitioner raises eleven assignments of error contesting the circuit court's ruling granting summary judgment in favor of Respondents. After review, and for the reasons explained herein, we affirm the judgment of the circuit court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner purchased a commercial building located at 322 Neville Street in Beckley, West Virginia, in August of 2007. Petitioner's property is referred to as "Lot 4." The adjacent property on Neville Street, referred to as "Lot 5," was owned by Respondent McBride when Petitioner purchased Lot 4. These two properties shared a common wall ("party wall").

A party wall agreement was established through a June 12, 1919, deed between the then-owners of Lot 4 and Lot 5. It provides, in relevant part,

the said first party [owner of Lot 4] does hereby Give, grant and sell unto the said second party [owner of Lot 5] one-half of said 18[-]inch wall and the strip of land on which it is being built, with the right to join to said wall and to the use of said wall as a party wall.

Mable L. Ross [owner of Lot 5] is to build front pier on her side of division line to support front of building. The said wall is 74 feet long, 18 inches thick to top of first story, which is to be high enough so that store room on first floor will be 14 feet from floor to ceiling, to be built of stone, of good workmanship and a good substantial wall; and the second story or remainder of said wall is to be brick 15 inches thick and built on center line and high enough so that rooms on second floor of said building will be 9 feet from floor to ceiling, with proper hei gth [sic] above roof.

The wall to be a party wall and as such to be part of each building (when building is erected on lot 5) and the title to which shall pass by deed to each of said lots.

It is undisputed that the party wall agreement 1) runs with the land, 2) has not been terminated, and 3) remains in effect. The party wall agreement is silent as to any obligations each party has regarding the wall's maintenance, care, and upkeep. Further, the party wall agreement does not address what responsibilities or duties an owner has in the event that one of the buildings connected to the party wall is destroyed.

In February of 2008, a fire significantly damaged the building on Lot 5, which was owned at that time by Respondent McBride. Petitioner stated that she received a call on the night of the fire letting her know that it had occurred. Upon arriving at her building the next day, Petitioner stated that her basement was "flooded. There was water everywhere; it looked like a warzone." Petitioner hired a contractor to remove the water from her basement. She stated that she did not contact her insurance company after the fire because she felt her contractor could make the repairs, and that she did not need to file a claim.

The building on Lot 5 was demolished a short time after the fire occurred. Respondent McBride removed the debris from Lot 5, leaving the party wall exposed. Petitioner stated that she witnessed the removal of the debris on Lot 5: "I saw dump trucks, excavators. It wasn't a small cleanup crew in there." After the debris was removed, Respondent McBride sold Lot 5 to Respondent Uptown in July of 2008.

Upon acquiring Lot 5, Respondent Uptown built an outdoor elevated wood patio deck for its restaurant that was located on Lot 6. The elevated patio deck was attached to the party wall on Lot 4. On December 13, 2012, Harper Rentals, Inc.¹ acquired Lot 5 from Respondent Uptown, and removed the patio deck from the party wall. On December 15, 2015, Harper Rentals, Inc. conveyed Lot 5 to Respondent Zen's. Respondent Zen's, the current owner of the property, excavated and paved Lot 5.

Petitioner filed her initial complaint on July 30, 2015, against three defendants² alleging tortious interference with a business relationship, and breach of the party wall agreement. Petitioner filed an amended complaint in 2017 in which she named the three current Respondents, and alleged three causes of action: 1) tortious interference with a business relationship,³ 2) breach of the party wall agreement, and 3) negligence.

Regarding the breach of the party wall agreement, Petitioner's amended complaint provides

[e]ach of the Defendants had or has a contractual duty to the Plaintiff to maintain the integrity [sic] Plaintiff [and Defendants have] a contractual duty to each other to maintain said wall.... The Plaintiff has been materially, substantially[,] and continuously damaged, and has otherwise been harmed as a result of the Defendants’ breach of contract of the Party Wall Agreement. The Plaintiff continues to suffer damages to Lot 4 because of the failure of each of the Defendants to perform his or its obligations under the Party Wall Agreement.

(Emphasis added).

Petitioner's negligence claim provides that all three Respondents had a duty to Petitioner to maintain the party wall, and not to negligently damage it. Petitioner alleged that each of the Respondents breached this duty, causing her to suffer damages: "[Petitioner] continues to suffer damages to Lot 4 because of the failure of each of the Defendants to maintain the party wall and not to negligently damage it."⁴

Following initial discovery, the circuit court issued a ruling in December of 2018 that 1) granted summary judgment in favor of Respondent McBride and Respondent Uptown on Petitioner's negligence claim, and 2) found that liability on the breach of the party wall agreement would be determined at trial. The circuit court's ruling on the issue of negligence explained that "[t]he undisputed evidence is that the Plaintiff knew of the damages prior to July 30, 2013. The statute of limitations on a negligence claim is two (2) years. It is clear that the Plaintiff failed to file her claim of negligence within the allotted timeframe under the statute"⁵ as to Respondent McBride and Respondent Uptown. Respondent McBride sold Lot 5 in 2008. Respondent Uptown sold Lot 5 in 2012. Petitioner's lawsuit was not filed until July of 2015. The circuit court determined that Petitioner's negligence claim against Respondent Zen's could proceed to trial.

Shortly after the circuit court's December 2018 ruling was entered, a new circuit court judge was assigned to this case.⁶ The case was scheduled for trial on January 27, 2020, and the parties filed renewed motions for summary judgment in November and December of 2019. The circuit court's December 13, 2019, order addressing these motions mainly involved two issues: the remaining negligence claim against Respondent Zen's, and the breach of the party wall agreement claim that remained against all three Respondents.

Both Petitioner and Respondent Zen's filed summary judgment motions on the remaining negligence claim. The circuit court denied both of these motions, ruling that "the issue of whether Zen's actions in grading the vacant lot and its actions after taking ownership of the lot are questions of fact that must be addressed at trial."

The circuit court granted summary judgment in favor of all three Respondents on the breach of the party wall agreement claim. The circuit court concluded that "there are no statutes in West Virginia pertaining to party walls, [and] the case law in West Virginia dealing with party wall rights and duties is limited. Therefore, the Court was required to look to other jurisdictions for guidance in determining the governing law in this case." The circuit court concluded that absent contractual duties, a party can remove its building subject to a party wall agreement when 1) notice is provided, 2) reasonable care is taken to protect the structural integrity of the party wall, and 3) the removal does not damage the adjoining building and its contents. The circuit court noted that Petitioner had not alleged that she was damaged "by the failure of any Defendant to provide notice of the intended removal of the burned building." While the circuit court found that there was a question of fact regarding "whether a party has exercised reasonable care in the removal of its building from the party wall," it noted that the only party that Petitioner had asserted a timely negligence claim against was Respondent Zen's. Since the removal of the debris took place years before Respondent Zen's acquired Lot 5, the circuit court determined...