State ex rel. Parkland Development, Inc. v. Henning, 21571

• Decision Date: 25 March 1993
• Docket Number: No. 21571,21571
• Citation: 429 S.E.2d 73,189 W.Va. 186
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. PARKLAND DEVELOPMENT, INC. and William Abruzzino, Petitioners, v. Honorable John L. HENNING, Judge of the Circuit Court of Randolph County, and E.R.A. Corporation, Respondents.

Page 73

429 S.E.2d 73

189 W.Va. 186

STATE of West Virginia ex rel. PARKLAND DEVELOPMENT, INC.

and William Abruzzino, Petitioners, v. Honorable John L. HENNING, Judge of the Circuit Court of

Randolph County, and E.R.A. Corporation, Respondents.

No. 21571.

Supreme Court of Appeals of

West Virginia.

Submitted March 2, 1993.

Decided March 25, 1993.

Syllabus by the Court

1. "A notice of lis pendens is properly filed pursuant to W.Va.Code § 55-11-2 (1981) only when a person seeks 'to enforce any lien upon, right to, or interest in designated real estate.' " Syllabus Point 1, State ex rel. Watson v. White, 185 W.Va. 487, 408 S.E.2d 66 (1991).

2. "Where the primary purpose of a lawsuit is to recover money damages, and the action does not directly affect the title to or right of possession of real property, the filing of a notice of lis pendens is inappropriate." Syllabus Point 2, State ex rel. Watson v. White, 185 W.Va. 487, 408 S.E.2d 66 (1991).

3. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

William W. Talbott, Webster Springs, for petitioners.

Evans L. King, Jr., Randall C. Light, Steptoe & Johnson, Clarksburg, for E.R.A. Corp.

PER CURIAM:

Parkland Development, Inc. and William Abruzzino, Parkland's president, seek to vacate an order, entered by John L. Henning, Judge of the Circuit Court of Randolph County dated September 21, 1992, that denied their motion to dismiss and expunge a notice of lis pendens ¹ filed by respondent E.R.A. Corporation. Because W.Va.Code 55-11-2 [1923] states that a notice of lis pendens can be based on an attachment, we find that the circuit court's refusal to grant Parkland's motion to expunge the notice of lis pendens was not legal error and, therefore, a writ of prohibition is not justified under the criteria enunciated in Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

On September 18, 1990, Parkland and E.R.A. entered a lease agreement in which Parkland agreed to build for and lease to E.R.A. a restaurant, which was to be part of a shopping center, to be developed by Parkland. Parkland also agreed that E.R.A. would have certain rights in the "Valley Pointe Shopping Center", namely parking, ingress, egress, use of common areas and right to place a large sign. According to an amendment to the lease, September 1, 1991 was the completion date for the shopping center and the restaurant.

On February 4, 1992, after Parkland failed to construct either the restaurant or the shopping center, E.R.A. filed a complaint against Parkland seeking, in the alternative, specific performance, money damages for lost profits, expenses and punitive damages. ² Based upon the affidavit of Evan Y. Semerjian, E.R.A.'s secretary, which verified the allegations in the complaint and said that Parkland is "a foreign corporation authorized to do business in the State of West Virginia," E.R.A. obtained an order of attachment and had the Sheriff of Randolph County execute the attachment upon Parkland's property. Based on the lease and the attachment, E.R.A. recorded a notice of lis pendens covering the entire proposed shopping center. Parkland objected, claiming the notice of lis pendens was overly broad. Parkland argued that the entire proposed shopping center should not be subject to the notice of lis pendens and proposed that the circuit court release the notice of lis pendens "as it affects any other property other than what is set out in the Lease." Without deciding if E.R.A. had an interest in the shopping center beyond the restaurant's site, the circuit court ordered the notice of lis pendens to be lifted, except as it affects the restaurant's proposed site and a limited parking area upon condition that Parkland post a $250,000 bond. Then Parkland, arguing that the notice of lis pendens affecting the entire shopping area including the restaurant's site should be expunged, sought a writ of prohibition from this Court.

W.Va.Code 55-11-2 [1923] states that a notice of lis pendens can be filed "[w]henever any person shall commence a suit, action, attachment, or other proceeding, ... to enforce any lien upon, right to, or interest in designated real estate...." (Emphasis added). ³ In Syllabus Point 2 Watson, supra note 1, we again stated our long standing rule that "[w]here the primary purpose of a lawsuit is to recover money damages, and the action does not directly affect the title to or right of possession of real property, the filing of a notice of lis pendens is inappropriate." See also Rardin v. Rardin, 85 W.Va. 145, 102 S.E. 295 (1919).

In the present case, E.R.A.'s complaint sought, in...