Graham v. Beverage

Decision Date12 June 2002
Docket NumberNo. 30110.,30110.
Citation211 W.Va. 466,566 S.E.2d 603
CourtWest Virginia Supreme Court
PartiesSpencer and Helen GRAHAM, Plaintiffs Below, Appellants v. Samuel H. BEVERAGE, P.C., in His Capacity as Commissioner of Highways, State of West Virginia Department of Transportation, Division of Highways, Earle and Jean Parker, and Paul Burcham, Defendants Below, Appellees

Braun A. Hamstead, Brian J. McAuliffe, Hamstead & Associates, L.C., Charles Town, for the Appellants.

William R. Kuykendall, Keyser, for the Appellee, Samuel H. Beverage, Comm'r.

Michael D. Lorensen, Tracy A. Rohrbaugh, Bowles Rice McDavid Graff & Love, P.L.L.C., Martinsburg, for the Appellees, Earle and Jean Parker. ALBRIGHT, Justice:

Appellants/plaintiffs below, Spencer and Helen Graham, appeal from separate orders of the Circuit Court of Berkeley County dated April 5, 2001, from which summary judgment was granted to the appellees/defendants below Earle and Jean Parker and Samuel H. Beverage, in his capacity as Commissioner of the Division of Highways within the West Virginia Department of Transportation (hereinafter "DOH"). The Grahams filed suit against the Parkers for allegedly causing damage to the Grahams' real and personal property by the negligent, defective and improper construction of a housing development storm water management system which altered the flow of surface water onto the Graham lot. The complaint also alleged that Mr. Parker interfered with the Grahams' free use and enjoyment of their real estate when he maliciously acted to influence DOH to change its plans for addressing the excess surface water problem affecting the Graham property. Additionally, as part of this same suit the Grahams sought a writ of mandamus to compel DOH to construct proper ditching in the right-of-way adjacent to the Graham land. The Grahams contend that the lower court erred by granting summary judgment to the Parkers and to DOH. Following our review of the record and the arguments of the parties in this case, we affirm the order granting summary judgment to DOH. Likewise, we affirm that part of the order granting summary judgment in favor of the Parkers with regard to the malicious interference claim. However, that portion of the order granting summary judgment in favor of Earle and Jean Parker with regard to the negligence claim, including the determination that this claim was time-barred, is reversed.

I. Factual and Procedural Background

The house and residential lot which is subject to the surface water drainage problems in this case were purchased by Mrs. Graham and her former husband, John Linton, in 1983.1 By deed dated October 11, 1991, Mrs. Graham acquired her ex-husband's interest in the quarter acre parcel.2 The east side of the Graham property and the front of the Graham house faces U.S. Route 11 in the Mill Creek District of Berkeley County at Bunker Hill, West Virginia. Running adjacent to the Graham lot on its northern boundary is Parker Drive, from which both the Graham property as well as the housing development of Earle and Jean Parker known as Southern Cross Estates can be accessed. Southern Cross Estates is located behind and to the west of the Graham property.

When the lot and house were purchased in 1983, Parker Drive was an unpaved gravel road. As part of the development of Southern Cross Estates, the Parkers paved and raised Parker Drive and subsequently in 1991-1992 installed a storm water management system as required by the Berkeley County Planning Commission. The storm water management system as described in a report of an engineering firm retained by the Parkers consisted "of an infiltration trench and a pipe under Parker Drive." The Parkers contracted with Paul Burcham to construct the storm water management system, including the infiltration trench which runs along the Grahams' side of Parker Drive. The engineers retained by the Parkers explained further in their report that the "construction of Parker Drive and Southern Cross Estates directed approximately 2 acres more area of runoff toward the Graham property," and that the infiltration trench was installed to restrict the rate at which the surface water flowed from the housing development onto the Graham lot so as to reduce the amount of water ponding in front of the Graham's house. In further explaining how the infiltration system works, the engineers' report said:

Water will infiltrate into the soil as it flows toward Route 11. Since the slope of the ditch is very flat, the water moves very slowly and it has time to infiltrate. For most storms the peak rain period is short. The constructed trench keeps this peak flow from reaching the Graham property and give [sic] the water time to infiltrate.

The Grahams said that they first noticed ponding of water on the property in 1990 and 1991 and that they first experienced severe flooding in January 1994.3 The 1994 flood caused water to fill the crawl space under the residence and rise from there into the family room of the house. The Grahams attempted to rectify or minimize the water problems by replacing the sump pump in the house's crawl space and trying to explore alternative solutions with Mr. Parker, Mr. Burcham, the Berkeley County Planning Commission and DOH.

The Grahams lodged their complaint about the water problems with the DOH supervisor located in Berkeley County apparently in late 1998 or early 1999, since the record shows DOH's first response was by letter dated January 13, 1999. This letter stated that DOH intended to install a culvert across Parker Drive, extend an open ditch running north along U.S. Route 11 and install culverts under driveways where needed. However, in a subsequent letter dated February 4, 1999, a DOH district administrator added the qualification that this work would be done on the condition that DOH received drainage easements from property owners whose land would be affected by the additional water flow the proposed ditching would create. The district administrator wrote two additional letters, dated June 16, 1999, and October 1, 1999, in response to inquiries from the Grahams' attorney. Both of these letters explained that potentially affected property owners refused to provide DOH with drainage easements and further noted that DOH did not create the problem of water runoff collecting on the Graham property,4 since the majority of the water runoff was originating from the housing development behind the Graham residence.

Although the record is not clear, it appears that sometime after the first DOH letter was sent, a petition was circulated, signed by the Parkers and other property owners in the area and submitted to DOH. The petition, in pertinent part, states:

THIS PETITION IS TO THE WEST VIRGINIA DEPARTMENT OF HIGHWAYS.
THIS PETITION IS PERTAINING TO THE PROPOSED CULVERT ACROSS PARKER DRIVE AND EXTENDING TO AN OPEN DITCH APPROX 300 FT LONG ACROSS LOTS AT THIS TIME LOTS 8, 7, 6 AND RUN OFF INTO A CULVERT UNDER RT. 11. SOUTH. THIS PROPOSED DITCH COULD POSSIBLY ALLEVIATE THE PROBLEM FOR LOT OWN NO95 AND CREATE PROBLEMS FOR SEVERAL OTHER LOTS ON BOTH SIDES OF RT11 SOUTH. BUNKER HILL. AND CREATE A GREATER WATER PROBLEM ON THE BUNKER HILL SCHOOL YARD.
THERE ARE OTHER OPTIONS TO ALLEVIATING THE PROBLEM FOR LOT OWNER NO9.
WE REQUEST A MEETING WITH THE DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS REPRESENTATIVES AND THEIR ENGINEER.

Not being successful in resolving the runoff problem through DOH, the Grahams initiated legal action against the Parkers, Mr. Burcham6 and DOH by filing a "Complaint for Writ of Mandamus and Damages" in the Berkeley County Circuit Court in mid-November 1999. The complaint alleged that the Parkers were responsible for damage to the Grahams' real and personal property due to the Parkers' negligence in constructing an infiltration system which did not adequately restrict the surface water flowing from the housing development onto the Graham property. Additionally, the complaint charged Earle Parker with intentionally interfering with the Grahams' free use and enjoyment of real estate by maliciously initiating a petition requesting DOH delay implementing plans intended to alleviate the problem. As part of this same suit, a writ of mandamus was sought against DOH to compel the agency to perform its duty to maintain the highways of the state by constructing proper ditching in the right-of-way adjacent to the Graham land.

The Parkers moved for summary judgment on December 28, 2000. Thereafter on January 17, 2001, DOH moved the lower court to dismiss the mandamus petition for failure to state a claim upon which relief can be granted,7 or for judgment on the pleadings or alternatively for summary judgment.8 As previously noted, the circuit court granted summary judgment for the Parkers and DOH by separate orders dated April 5, 2001. Subsequently, the Grahams filed motions to amend or alter the judgment orders pursuant to Rule 59(e) of the Rules of Civil Procedure. The circuit court denied the motions in both instances: by order dated May 14, 2001, the lower court sustained the summary judgment in favor of the Parkers; by order dated June 12, 2001, summary judgment for the DOH was upheld. This appeal followed.

II. Standard of Review

As this Court explained in syllabus point one of Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998),

[t]he standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W.Va.R.Civ.P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed.

Consequently, in the case sub judice we look to the standard of review applicable to summary judgments.

A de novo standard is applied to our review of summary judgments. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Our review is guided by the...

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