Bradley v. Dye

• Decision Date: 14 June 2022
• Docket Number: 21-0313
• Citation: 875 S.E.2d 238
• Parties: Gregory S. BRADLEY and Judy Johnson Bradley, Plaintiffs Below, Petitioners, v. Andrea Dale DYE; Larry Jones, Jr., and Roberta J. Jones, Individually and d/b/a Jones Hauling ; and Other Unknown Defendants, Defendants Below, Respondents.
• Court: West Virginia Supreme Court

875 S.E.2d 238

Gregory S. BRADLEY and Judy Johnson Bradley, Plaintiffs Below, Petitioners,

v.Andrea Dale DYE; Larry Jones, Jr., and Roberta J. Jones, Individually and d/b/a Jones Hauling ; and Other Unknown Defendants, Defendants Below, Respondents.

No. 21-0313

Supreme Court of Appeals of West Virginia.

Submitted: March 16, 2022

Filed: June 14, 2022

John R. Angotti, Esq., David J. Straface, Esq., Chad C. Groome, Esq., Angotti & Straface, LC, Morgantown, West Virginia, Attorneys for the Petitioners

James W. Marshall, III, Esq., Bailey & Wyant, PLLC, Martinsburg, West Virginia, Daniel T. LeMasters, Esq., Bailey & Wyant, PLLC, Charleston, West Virginia, Attorneys for the Respondent

Wooton, Justice:

Petitioners, Gregory S. Bradley and Judy Johnson Bradley ("the Bradleys"), seek relief from an order of the Circuit Court of Marion County, entered on March 17, 2021, granting summary judgment in favor of the Respondent, Ms. Andrea Dale Dye ("Ms. Dye") in this action for timber trespass. The Bradleys raise three errors: (1) the circuit court erred by finding that Ms. Dye did not physically enter their land and, therefore, she could not have violated West Virginia Code § 61-3-48a (2020), the statute establishing a civil penalty for cutting, damaging, or carrying away timber and other vegetation; (2) the circuit court erred with respect to their negligence claim by finding that Ms. Dye owed them no duty; and (3) the circuit court erred by finding that Ms. Dye's conduct could not support a claim for punitive damages. After careful review of the parties’ briefs and oral arguments, the appendix record, and the applicable law, we conclude that the circuit court erred by granting summary judgment to Ms. Dye. We therefore reverse the circuit court's summary judgment order and remand this case for additional proceedings consistent with this opinion.

I.FACTUAL AND PROCEDURAL HISTORY

The Bradleys and Ms. Dye, one of the defendants in the action below, own contiguous property in rural Marion County, West Virginia. Ms. Dye resides on her property, which is located along Flaggy Meadow Road.¹ The Bradleys live in the Commonwealth of Virginia and periodically visit their Marion County property.² The Bradleys’ property, which is located behind and up the hill from Ms. Dye's property, is landlocked and may be accessed only from Flaggy Meadow Road through an easement across Ms. Dye's land.

Located on the Bradleys’ land, uphill from Ms. Dye's home, is a gas wellhead that serves her home. There is a gas easement from Flaggy Meadow Road up to a clearing where the wellhead sits. A lower portion of this road, which crosses Ms. Dye's property, also serves as the easement providing the Bradleys with access to their land. In connection with the litigation below, Ms. Dye provided deposition testimony in which she explained that she had believed the wellhead was on her land. To keep unauthorized people from using the area to hunt and ride ATVs, she personally walked up the hill on the gas well easement and posted approximately ten to fifteen no-trespassing signs "here and there." Some of these signs identified Ms. Dye as the owner of the property upon which they were placed, which actually was land belonging to the Bradleys. Ms. Dye also has stated that she has no idea where the boundaries to her land lie.³

Ms. Dye was approached by another defendant in the action below, Mr. Larry Jones, Jr. ("Mr. Jones"), about obtaining a temporary easement across her land to remove timber from the Hayeses’ land, which apparently bordered both Ms. Dye's and the Bradleys’ property. Mr. Jones also inquired about logging Ms. Dye's land. On January 10, 2016, Ms. Dye and Mr. Jones, d/b/a Jones Hauling, entered a "Timber Sale Contract," with Ms. Dye identified as "Seller" and Mr. Jones identified as "Buyer." The contract was for the sale of "all standing timber, as herein defined, growing on and forming a part of real property owned by Seller."⁴ Additionally, "Buyer agree[d] and covenant[ed] that he is an independent contractor;" represented "that he is personally familiar with this property, and the boundaries [sic] lines delineating the area to be logged;" and pledged "not to cut any line tree or trees on land owned by other third parties over which a right of way has not been procurred [sic]." According to Ms. Dye, Mr. Jones asked her for a plat of her property, and she provided one to him, but she never walked her land with him. She also never observed the logging operation or the locations being logged.

To facilitate the logging, Ms. Dye removed a cattle gate that crossed the easement that leads up to the gas wellhead.⁵ Ms. Dye also granted Jones Hauling the temporary easement Mr. Jones had requested, purportedly through her property, to be used to remove timber from a tract of land that belonged to the Hayeses. However, Ms. Dye explained that Mr. Jones

needed to take his equipment up through that alleyway and up on top of the hill and he wanted to know if he could do that, if he could pay like a right-of-way easement .... He told me he would be timbering for Mr. Hayes and needed access up through there and I granted it to him.

The temporary easement granted by Ms. Dye allows Mr. Jones’ use of a right-of-way through her property, but the "top of the hill" area discussed appears to be the Bradleys’ land.

During the summer of 2017, on a visit to their Marion County property, the Bradleys discovered that their land had been logged. It was later determined that approximately 300 trees had been removed from their property, and about twenty-nine acres of their land had suffered damage from the timber theft. In an apparent effort to gain access to valuable trees, other trees and brush were cut and left behind. A trench also had been cut into their property. According to the Bradleys, this damage has caused slips and flooding and has otherwise affected the water flow on their land. The Bradleys estimate that the damage to their land and anticipated restoration costs total approximately $92,972.00. They further estimate the value of the stolen timber to be approximately $25,420.49.

The Bradleys reported the theft, and an agent of the West Virginia Division of Natural Resources ("DNR"), Law Enforcement Section, conducted an investigation and confirmed the theft of the Bradleys’ trees. The officer's report notes the presence of signs that displayed the name and address of someone who was not the owner of the property, i.e., Ms. Dye. Information about the theft was provided to the county prosecutor, who declined to pursue criminal charges, so the Bradleys were advised that their only recourse was to pursue their loss as a civil matter. Accordingly, on July 25, 2018, the Bradleys filed a complaint in the Circuit Court of Marion County. The named defendants included Ms. Dye, Mr. Jones, and his wife Roberta J. Jones ("Mrs. Jones"), individually and d/b/a Jones Hauling ("collectively the Jones co-defendants"), and other unknown defendants. The Bradleys sought to recover for the theft of their trees, the destruction of their land, and treble damages pursuant to West Virginia Code § 61-3-48a. Thereafter, Ms. Dye filed her answer and affirmative defenses on August 30, 2018, along with a cross-claim against all other defendants. On December 11, 2018, Mr. and Mrs. Jones filed an answer.⁶ Depositions were taken of Ms. Dye and the Bradleys, after which Ms. Dye filed a motion for summary judgment. The circuit court granted Ms. Dye's motion for summary judgment by order entered on March 17, 2021. This appeal followed.

II.STANDARD OF REVIEW

Our review of this appeal from the circuit court's summary judgment order is plenary. "A circuit court's entry of summary judgment is reviewed de novo. " Syl. Pt. 1, Painter v. Peavy , 192 W. Va. 189, 451 S.E.2d 755 (1994). Therefore,

[i]n reviewing a circuit court's order granting summary judgment this Court, like all reviewing courts, engages in the same type of analysis as the circuit court. That is " ‘we apply the same standard as a circuit court,’ reviewing all facts and reasonable inferences in the light most favorable to the nonmoving party."

State ex rel. Vanderra Res., LLC v. Hummel , 242 W. Va. 35, 42, 829 S.E.2d 35, 42 (2019) (quoting Fayette Co. Nat'l Bank v. Lilly , 199 W. Va. 349, 353 n.8, 484 S.E.2d 232, 236 n.8 (1997), overruled on other grounds by Sostaric v. Marshall , 234 W. Va. 449, 766 S.E.2d 396 (2014) ). In this regard, it is well settled that "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of N.Y. , 148 W. Va. 160, 133 S.E.2d 770 (1963). Mindful of these standards, we proceed to address the decisive issues raised in this appeal.

III.DISCUSSION

The Bradleys challenge the circuit court's summary judgment ruling on three grounds: (1) that the circuit court improperly concluded that Ms. Dye could not be liable under West Virginia Code § 61-3-48a, because she did not physically enter the Bradleys’ land; (2) that the circuit court improperly concluded that Ms. Dye owed the Bradleys no duty of care and, therefore, could not be liable under the Bradleys’ negligence theory; and (3) that the circuit court erroneously found there was no evidence to support the Bradleys’ claim for punitive damages. We will address each alleged error in turn.

A. West Virginia Code § 61-3-48a

The Bradleys seek treble damages from Ms. Dye under the following statute:

[a]ny person who enters upon the land or premises of another without written permission from the owner of the land or premises in order to cut, damage or carry away or cause to be cut, damaged or carried away , any timber, trees, logs, posts, fruit, nuts, growing plant or product of any growing plant, shall be liable to the owner in the amount of three times the value of the timber, trees, growing

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