Zimmerer v. Romano

• Citation: 679 S.E.2d 601
• Decision Date: 30 April 2009
• Docket Number: No. 34269.,34269.
• Parties: Ann Morgan ZIMMERER and Gerald Lee Zimmerer, Plaintiffs Below, Appellants, v. Mark E. ROMANO, Robin J. Romano; and West Virginia Department of Transportation, Division of Highways, Defendants Below, Appellees.
• Court: Supreme Court of West Virginia

679 S.E.2d 601

Ann Morgan ZIMMERER and Gerald Lee Zimmerer, Plaintiffs Below, Appellants, v. Mark E. ROMANO, Robin J. Romano; and West Virginia Department of Transportation, Division of Highways, Defendants Below, Appellees.

No. 34269.

Supreme Court of Appeals of West Virginia.

Submitted February 25, 2009.

Decided April 30, 2009.

Syllabus by the Court

1. "A circuit court's entry of summary judgment is reviewed de novo." Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "`"The 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." Syllabus point 1, Wickland v. American Travellers Life Insurance Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).' Syllabus point 2, Bowers v. Wurzburg, 205 W.Va. 450, 519 S.E.2d 148 (1999)." Syllabus point 1, Alden v. Harpers Ferry Police Civil Service Commission, 209 W.Va. 83, 543 S.E.2d 364 (2001).

3. "`"Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).' Syllabus point 3, Alden v. Harpers Ferry Police Civil Service Commission, 209 W.Va. 83, 543 S.E.2d 364 (2001)." Syllabus point 1, State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005).

4. "`A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent.' Syl. pt. 1, Cotiga Development Company v. United Fuel Gas Company, 147 W.Va. 484, 128 S.E.2d 626 (1963)." Syllabus point 1, Sally-Mike Properties v. Yokum, 175 W.Va. 296, 332 S.E.2d 597 (1985).

5. "`In construing a deed, will or other written instrument, it is the duty of the court to construe it as a whole, taking and considering all the parts together, and giving effect to the intention of the parties wherever that is reasonably clear and free from doubt, unless to do so will violate some principle of law inconsistent therewith.' Pt. 1, syllabus, Maddy v. Maddy, 87 W.Va. 581[,105 S.E. 803 (1921)]." Syllabus point 5, Hall v. Hartley, 146 W.Va. 328, 119 S.E.2d 759 (1961).

6. "For ascertainment of the intent of the parties to a deed, in which the description of the subject matter is inconsistent, contradictory, and ambiguous, extrinsic evidence is admissible." Syllabus point 1, State v. Herold, 76 W.Va. 537, 85 S.E. 733 (1915).

7. "To enable the court to construe a deed or other writing, ambiguous on its face, it is always permissible to prove the situation of the parties, the circumstances surrounding them when the contract was entered into and their subsequent conduct giving it a practical construction, but not their verbal declarations. But, if a latent ambiguity is disclosed by such evidence, such for instance as that the terms of the writing are equally applicable to two or more objects, when only a certain one of them was meant, then prior and contemporaneous transactions and collocutions of the parties are admissible, for the purpose of identifying the particular object intended." Syllabus point 2, Snider v. Robinett, 78 W.Va. 88, 88 S.E. 599 (1916).

8. "`"Where there is ambiguity in a deed, or where it admits of two constructions that one will be adopted which is most favorable to the grantee." Pt. 6, syllabus, Paxton v. Benedum-Trees Oil Co., 80 W.Va. 187[, 94 S.E. 472 (1917)].' Syl. Pt. 3, Hall v. Hartley, 146 W.Va. 328, 119 S.E.2d 759 (1961)." Syllabus point 5, Cottrill v. Ranson, 200 W.Va. 691, 490 S.E.2d 778 (1997).

9. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syllabus point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).

10. "Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syllabus point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).

11. "Applying the plain language of the statute, abutting landowners must receive preferential treatment when purchasing state property pursuant to W. Va.Code, 17-2A-19 (1988)." Syllabus point 3, in part, Mills v. Van Kirk, 192 W.Va. 695, 453 S.E.2d 678 (1994).

12. "Under W. Va.Code, 17-2A-19 [1994], all abutting landowners (whether `principal abutting landowners' or not) must receive preferential treatment when the Commissioner of the Division of Highways chooses to sell state highways property that the Commissioner has determined is not necessary for present or future use. The statute directs that the Commissioner must offer to sell property acquired after 1973 that has not substantially changed since its acquisition to principal abutting landowners at a cost equal to the amount paid in acquiring the real estate, plus costs and interest. The Commissioner may also first offer to sell right-of-way property to principal abutting landowners without following the procedures for a public auction. The Commissioner must offer all other abutting property owners the first right to purchase the highways property for fair market value." Syllabus point 3, McCoy v. VanKirk, 201 W.Va. 718, 500 S.E.2d 534 (1997).

13. "Statutes which relate to the same subject matter should be read and applied together so that the Legislature's intention can be gathered from the whole of the enactments." Syllabus point 3, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).

14. "The general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled." Syllabus point 1, UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984).

Ancil G. Ramey, Hannah B. Curry, Steptoe & Johnson PLLC, Charleston, WV, for Appellants, Ann Morgan Zimmerer and Gerald Lee Zimmerer.

Gregory A. Tucker, Gregory A. Tucker, P.L.L.C., Summersville, WV, for Appellees, Mark E. and Robin J. Romano.

G. Alan Williams, Robert B. Paul, WVDOT, Division of Highways, Charleston, WV, for Appellee, West Virginia Department of Transportation, Division of Highways.

PER CURIAM.

The plaintiffs below and appellants herein, Ann Morgan Zimmerer and Gerald Lee Zimmerer¹ (hereinafter referred to separately as "Mrs. Zimmerer" and "Gerald Zimmerer," or collectively as the "Zimmerers"), appeal from an order entered October 12, 2007, by the Circuit Court of Nicholas County. By that order, the circuit court denied the Zimmerers' motion for reconsideration of the circuit court's previous order granting summary judgment to the defendants below and appellees herein, Mark E. Romano and Robin J. Romano (hereinafter referred to collectively as the "Romanos"). The order granting summary judgment to the Romanos was entered June 4, 2007. By that order, the circuit court found that the Romanos were the owners in fee simple of 20.29 acres of land, and further, that the defendant below and appellee herein, the West Virginia Department of Transportation, Division of Highways (hereinafter referred to as the "DOH") properly sold a 1.18 acre tract of its right of way interests to the Romanos. Based upon the parties' arguments,² the record designated for our consideration, and the pertinent authorities, we affirm, in part, and reverse, in part, the decisions of the circuit court, and remand this matter to the circuit court.

I. FACTUAL AND PROCEDURAL HISTORY

This case involves a property dispute over the ownership in fee simple of 20.29 acres of land, as well as the proper right of way ownership of 1.18 acres of land.³ The property in question was originally part of an 82.65 acre farm in Nicholas County, West Virginia, which had been owned for generations by the Hill family. The 82.65 acre tract of land owned by the Hill family adjoined another ancestral farm, which had been owned by the Zimmerers' family for generations, and remains in the possession of the Zimmerers. There is no challenge to the Zimmerers' current ownership of the Zimmerer family's ancestral farm. Rather, the controversy arises over the ownership rights to the 20.29 acre tract, along with the 1.18 acre right of way contained therein, which was part of the original Hill family's 82.65 acre ancestral farm.

In 1971, pursuant to an eminent domain action, the DOH was vested with a right of way interest⁴ in three separate tracts of land that was part of the Hills' 82.65 acre farm. The rights of way were for the purpose of constructing and improving United States Route 19. The three parcels of land in which the DOH obtained a right of way interest totaled 20.29 acres, and is the land whose ownership is in question before this Court.⁵ The two issues before this Court are: (1) the fee simple ownership of the 20.29 acres of land, and (2) the propriety of the DOH's decision to sell 1.18 acres of its right of way interests to the Romanos.⁶

By deed dated April 6, 1995, the Hill family⁷ conveyed the ancestral farm to Greenwood Timber, Inc. (hereinafter referred to as "Greenwood Timber").⁸ The deed stated "the [Hills] do hereby grant, sell, and convey unto [Greenwood Timber] with Covenants of General Warranty of Title the surface only of that certain tract or parcel of land...." The language is followed by a description of the boundaries of the property, which culminates in the statement that the land described "contain[s] 82.65 acres, more or less." Subsequent to the boundary summary, the deed states that "there is reserved from the above description that previous outconveyance to the West Virginia Department of Highways of 20.29 acres, leaving a residue of 62.36 acres, more or less."...