Dosch v. Dunn

• Decision Date: 17 May 2022
• Docket Number: 20-0803
• Parties: John R. Dosch, individually and as Trustee of the John R. Dosch Revocable Trust, Defendants below, Petitioner, v. Richard E. Dunn and Cheryl C. Dunn, Plaintiffs below, Respondents.
• Court: West Virginia Supreme Court

John R. Dosch, individually and as Trustee of the John R. Dosch Revocable Trust, Defendants below, Petitioner, v. Richard E. Dunn and Cheryl C. Dunn, Plaintiffs below, Respondents.

No. 20-0803

Supreme Court of Appeals of West Virginia

May 17, 2022

Ritchie County 16-C-48

MEMORANDUM DECISION

Petitioner John R. Dosch, individually and as trustee of the John R Dosch Revocable Trust, by counsel George J. Cosenza and Thomas H. Fusonie, appeals the Circuit Court of Ritchie County's September 16, 2020, and April 20, 2020, orders denying petitioner's motion to amend the judgment after the circuit court granted summary judgment to respondents Richard E. Dunn and Cheryl C. Dunn, and denied petitioner's motion for summary judgment. Respondents, by counsel John N. Ellem, filed a response to which petitioner filed a reply.

After considering the parties' written and oral arguments, as well as the appendix record and the applicable law, this Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's orders is appropriate under Rule 21 of the Rules of Appellate Procedure.

This case is a dispute over access to a right-of-way (referred to as the "Lantz roadway"), which is a dirt and gravel roadway located in rural Ritchie County that connects State Road 53/1 ("SR 53/1") with an area known as Bear Run.^[1] Approximately twenty-two years ago, petitioner and others sued then-property owner Ronald P. Lantz to prevent him from blocking access to the Lantz roadway by locking a gate that crossed it, as the roadway was used by the parties and by the community. Petitioner was successful in that action and the circuit court permanently enjoined Mr. Lantz from blocking petitioner, as well as others, from freely traveling on the Lantz roadway. In 2011, petitioner purchased the Lantz property and proceeded to engage in the same conduct for which he had sued Mr. Lantz - he locked the same gate that had earlier been locked by Mr. Lantz, thereby blocking respondents from accessing the Lantz roadway which originates on respondents' property.

First Lawsuit

The Lantz roadway has been existence for about ninety years and, as previously mentioned, was the subject of a prior combined lawsuit filed in 1999 and 2000 by petitioner and other plaintiffs for the purpose of enjoining the defendant, Mr. Lantz, from permanently blocking the Lantz roadway. ^[2] At that time, Mr. Lantz owned the thirty-three-acre tract, which he had owned since November 7, 1994. Also, at the time of the first lawsuit petitioner owned several tracts of property adjacent to the Brooks property, which was adjacent to the Smith property, which was adjacent to the property owned by Mr. Lantz.

In 2004, following a bench trial, the circuit court issued an order resolving the first actions. In that order, the court described the existence of Lantz roadway, which allowed access to what is known as the Bear Run area. Critically, the court also made the following factual findings, ^[3] which findings were admitted by petitioner in his answer to respondents' complaint in the instant action:

11. That a roadway intersecting with State Rd 53/1 passed through Lantz's property and then through Smith, Brooks and Dosch allowing access to the Bear Run area.

12. That the [c]ourt found a roadway was constructed in a collaborative effort by the families that resided on the properties over 70 years prior to the trial.

13. That the [c]ourt further found that although none of the parties resided on the property, the roadway was used in an uninterrupted, open and continuous manner without objection by Lantz or his predecessors.

14. That accordingly the [c]ourt found a right to use the roadway existed by prescription.

15. That notably, the [c]ourt found that:

Mr. Lantz testified that the public perception that use of the roadway was permissible was due to the road having been used by the public for "so long without permission."

In the 2004 order, the circuit court further found that "Mr. Lantz testified that usage of the roadway prior to the erection of the gate was open and obvious[;] [t]here have been periods of time when the roadway has been less traveled than other times, but the roadway has been in continuous use since its construction and has not been abandoned." Finally, the court found that "[t]he existence of and right to use the roadway appears in the chain of title to Mr. Lantz' property, said change being of record through prior deeds in the Office of Clerk of the County Commission of Ritchie County, West Virginia."

Consequently, in its 2004 order the court concluded that as a matter of law plaintiffs (including petitioner) had "established the existence of a prescriptive easement, as it has been shown that usage of subject road has been open, continuous and uninterrupted, under a bona fide claim of right, and without objection for a period in excess of ten years." The court further determined:

3. That Plaintiffs [including petitioner] have a right of way over the roadway that should not be restricted in any way. The entire roadway shall be subject to use by all the Plaintiffs, the Defendant, their respective families, social or business invitees, their heirs, assigns, and/or successors for ingress and egress and for access to and from the public roadway.

4. Mr. Lantz, his agents, servants, and/or employees shall be, and are hereby, permanently enjoined from erecting or placing any barrier, natural or man-made, upon the subject roadway . . . .

(Emphasis added).

Second Lawsuit

In the current litigation, petitioner is engaged in the identical conduct for which he sued the previous owner of the same property in the first lawsuit. After petitioner purchased the Lantz property in 2011, he placed a lock on the gate that had been erected by Mr. Lantz for the purpose of blocking access to the Lantz roadway. When respondent Mr. Dunn asked petitioner if he could use the road, petitioner told him there was no reason for him to do so. Respondent Mr. Dunn used the roadway to access his cabin, especially during hunting season. Interestingly, petitioner testified that he gave other property owners, including Mr. Brooks, Mr. Smith and the Hardbargers access to the Lantz roadway - but not respondents.^[4] Respondents sued petitioner, alleging that they are entitled to use the Lantz roadway. Respondents asserted claims of offensive collateral estoppel, based upon the findings in the first lawsuit, an easement by prescription, and injunctive relief seeking to require petitioner to remove the gate and/or lock blocking the use of the Lantz roadway. After a period of discovery, the parties filed their respective motions for summary judgment.

On April 20, 2020, the circuit court granted summary judgment in favor of respondents in a twenty-five-page order. The court determined that respondents had satisfied the doctrine of collateral estoppel^[5] and were entitled to a prescriptive easement by application of that doctrine. Specifically, the circuit court noted that the parties agreed there had been a final determination on the merits in 2004 in the combined cases, Civil Action Nos. 99-C-45 and 00-C-27. The court further found that "[e]ach of the opposing sides in this litigation largely agree that the two previous actions and the case at bar involve either the same parties or persons in privity or successors in interest with those same parties." Accordingly, the court concluded that "the Plaintiffs are in privity by operation of the doctrine of virtual representation and the trust defendant is in privity by virtue of being a successor in interest to a party to the previous actions." Further, the court recognized that

one cannot avoid the effect of a legal determination simply because they were not joined as a party to the suit. Gribben v. Kirk, 195 W.Va. 488, 499 S.E.2d 147 (1995). Although it is the Plaintiffs who desire to avail themselves of the ruling in the prior actions, the principle likewise applies.

The court further found, based upon petitioner's admission, that he had fully and fairly litigated "issues concerning the access to the roadway as described [in the Complaint]." The court also found that "the claims and issues in the case at bar are identical to the cause of action identified in the previous cases and were resolved or could have been resolved . . . in the prior actions." Thus, the circuit court determined that

19. Judge Holland's resolution of the previous actions necessarily has the effect of an affirmative judgment in favor of the Plaintiffs with respect to the issues relevant in this case to-wit: the existence and location of the right-of-way easement.

20. Inasmuch as the issue of the existence and location of a right-of-way easement has been previously established and found to be dispositive of that issue now before the Court as above set forth, the issue of whether the plaintiffs have independently established the same is moot. Therefore, the Court makes no determination in this regard.

Finally the circuit court found that respondents "have a right of way over the roadway that should not be restricted in any way" ordering that

consistent with paragraph 4 of Judge Holland's conclusion of law set forth in his October 7, 2004 Order, that the Defendants herein, their agents, successors, assigns, and employees are hereby to be permanently enjoined from erecting or placing any barrier, natural or man-made upon the subject roadway located in Murphy District, Ritchie County, West Virginia as described on Tax Map 22 as parcel 10 and conveyed to them by deed dated November 23, 2011.

The Court FINDS and ORDERS there is no waiver of the benefit of the ruling in the previous suits, 99-C-45 and 00-C-27, due

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