in the supreme court of appeals of west i ~l20~ r~1 ...€¦ · uu nu i ht!viuvti from file file...

UU NU I Ht!ViUVti FROM FILE FILE COpy

IN THE SUPREME COURT OF APPEALS OF WEST '1 f

Jt ~L20~ r~1 MCELROY COAL COMPANY, a corporation, TERRY L. DOBBS and CATHERINE A. DOBBS,

Defendants Below, Petitioners, v.

GARY R. DOBBS,

Plaintiff Below, Respondent.

I "'''H''''HG''S,"~CLERK \ SUPRE1!:E COURT OF APPEALS '

OFV,lESTVlqS'~~A .· ... -"'"'0_"£·.. -='--.-.~_

DOCKET NO. 18-0134 and 18-0135

RESPONDENT'S BRIEF

Counsel for Respondent Gmy Dobbs

Robert P. Fitzsimmons, Esq. W. Va. Bar ID #1212 Robert J. Fitzsimmons, Esq. W. Va. Bar ID #9656 Fitzsimmons Law Firm PLLC 1609 Warwood Avenue Wheeling, VlV 26003 Telephone: (304) 277-1700 Fax: (304) 277-1705 [email protected] [email protected]

Michael J. Burkey, Esq. W.Va. Bar ID #4847 Linda Burkey, Esq. W.Va. Bar ID #5052 Burkey & Burkey 2058 Irish Ridge Road Cameron, WV 26033 Telephone: (304) 845-1540 [email protected] [email protected]

Counsel for Petitioner McElroy Coal Company

Ancil G. Ramey, Esq. W.Va. Bar ID #3013 Stacey Richards-Minigh, Esq. W.Va. Bar ID # 9711 Steptoe & Johnson PLLC P.O. Box 2195 Huntington, WV 25722-2195 Telephone: (304) 526-8133 Fax: (304) 933-8738 [email protected] [email protected]

William D. Wilmoth, Esq. W.Va. Bar ID #4075 Steptoe & Johnson PLLC P.O. Box 751 Wheeling, WV 26003-0751 Telephone: (304) 231-0456 Fax: (304) 233-0014 william. [email protected]

H. Brann Altmeyer, Esq. W . Va. Bar ID # 118 Phillips, Gardill, Kaiser & Altmeyer PLLC 61 14th Street Wheeling, WV 26003 Telephone: (304) 232-6810 Fax: (304) 232-4918 [email protected]

Counsel for Terry L. and Catherine Dobbs Petitioners Eric M. Gordon, Esq. W.Va. Bar ID # 6897 Berry Kessler, Crutchfield, Taylor & Gordon 514 Seventh Street Moundsville, WV 2604] Telephone: (304) 845-2580 Fax: (304) 845-9055 [email protected]

. ,

TABLE OF CONTENTS

I. ASSIGNMENTS OF ERROR .................................................................................................. 1

II. STATEMENT OF THE CASE ............................................................................................... 1

III. SUMMARY OF ARGUMENT ............................................................................................. 8

IV. STATEMENT REGARDING ORAL ARGUMENT AND DECISION ........................... 8

V. ARGUMENT ........................................................... ~ ................................................................ 9

A. STANDARD OF REVIEW ... "" ...................................................................................... 9

B. THE CIRCUIT COURT CERTIFIED ITS RULING FOR APPELLATE REVIEW PURSUANT TO R.CIV.P. 54(B) ............................................ 9

C. THE 1976 OPTION IS NOT APPURTENANT TO THE SLAUGHTERHOUSE TRACT ...................................................................................... 9

D. GARY DOBBS DID NOT TRANSFER HIS OPTION TO PURCHASE THE 34.11 ACRE TRACT WHEN HE SOLD THE SLAUGHTERHOUSE PROPERTY ............................................................................. 29

E. GARY DOBBS' OPTION TO PURCHASE THE 34.11 ACRE TRACT WAS TRIGGERED WHEN DEFENDANTS TERRY AND CATHERINE DOBBS DECIDED TO SELL THE SUBJECT TRACT BY EXECUTING THE AUGUST 31, 2007 MCELROY OPTION AGREEMENT ........................................................................... 30

F. GARY DOBBS' OPTION TO PURCHASE THE 34.11 ACRE TRACT WAS TRIGGERED WHEN DEFENDANTS TERRY AND CATHERINE DOBBS DECIDED TO ASSIGN OR OTHERWISE DISPOSE OF THE SUBJECT TRACT BY EXECUTING THE MCELROY FEBRUARY 15, 2008 WAIVER, RELEASE AND EASEMENT .................................................................... 32

G. THE EXECUTION OF THE WAIVER, RELEASE AND EASEMENT WAS A SALE OR ASSIGNMENT OF THE SUPPORT ESTATE WHICH TRIGGERED THE APRIL 23, 1976 OPTION TO PURCHASE .................................................................................... 35

, ,

I H. THE CIRCUIT COURT PROPERLY DENIED SUMMARYi

JUDGMENT WITH RESPECT TO PLAINTIFF'S SLANDER OF TITLE CLAIM ........................................................................................................ 37

1. THE CIRCUIT COURT PROPERLY DENIED SUMMARY JUDGMENT WITH RESPECT TO PLAINTIFF'S TORTIOUS INTERFERENCE CLAIM ............................................................................................ 38

1. THE CIRCUIT COURT PRO PERL Y DENIED SUMMARY JUDGMENT WITH RESPECT TO PLAINTIFF'S CIVIL CONSPIRACY CLAIM ................................................................................................ 39

K. THE CIRCUIT COURT PROPERLY DENIED SUMMARY JUDGMENT WITH RESPECT TO PLAINTIFF'S WRONGFUL POSSESSION CLAIM .................................................................................................. 40

VI. CONCLUSION ..................................................................................................................... 40

11

TABLE OF AUTHORITIES

Cases

Allemongv. Frendzel, 178 W.Va. 601, 363 S.E.2d487 (1987) ................................................... 13

Charnetski v. Miner's Mills Coal Mining Co., 270 Pa. 459,113 A. 683 (1921) .......................... 39

Cottrill v. Ranson, 200 W.Va. 691,490 S.E.2d 778 (1997) ............................................... 9, 29, 30

Faith United Methodist Church & Cemetery of Ten·a Alta v. Morgan, 231 W. Va. 423, 745 S.E.2d 461 (2013) ............................................................................. 39,40

Hall v. Hartley, 146 W.Va. 328,119 S.E.2d 759 (1961) .............................................................. 29

In re Gordon, 317 Pa. 161, 176 A. 494, (1935) ............................................................................ 39

Litch v. People ex ref. Town of Sterling, 75 Pac. 1079, 19 Colo. App. 421 (1904) ...................... 37

Morrison Department Store Co. v. Lewis, 96 W.Va. 277, 122 S.E. 747 (1924) .......................... 14

Neekamp v. Huntington Chamber of Commerce, 99 W.Va. 388, 129 S.E. 314 (1925) ................ 14

Paxton·v. Benedum-Trees Oil Co., 80 W.Va. 187,94 S.E. 472 (1917) ....................................... 29

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,43 S.Ct. 158,67 L.Ed. 322, 28 A.L.R. 1321 (1922) .............................................................................................................. 39

Pollockv. Brookover, 60 W.Va. 75, 53 S.E. 795 (1906) .............................................................. 40

Robinson v. Edgell, 57 W.Va. 157,49 S.E.1027 (1905) ........................................................ 15, 16

Smith v. Glen Alden Coal Co., 347 Pa. 290, 32 A.2d 227 (1943) ................................................. 38

Smithv. VanVoorhis, 170W. Va. 729,296S.E.2d851 (1982) .................................................... 10

State ex ref. United Mine Workers of Am., Local Union 1938 v. Waters, 200 W. Va. 289,489 S.E.2d 266 (1997) ..................................................................................... 9

Stevens v. Raleigh Board of Education, 163 W.Va. 434, 257 S.E.2d 175 (1979) ........................ 30

TBI Exploration, Inc., v. Belco Energy Corp., 220 F.3d 586, 2000 WL 960047 (5th Cir. 2000) ............................................................................................................... 12, 13, 14

West Virginia Dep't of Highways v. Farmer, 159 W.Va. 823,226 S.E.2d 7:17 (1976) ................ 29

I 111

Woodv. Territory, 1 Or. 223 (1856) ........................................................................................... 37

Zimmerer v. Romano, 223 W. Va. 769, 679 S.E.2d 601 (2009) ................................................... 29

Statutes

W.Va. Code §18-5-7 ..................................................................................................................... 28

Other Authorities

1990 Model Surface Use and Mineral Development Accommodation Act ................................... 37

Judicial and Statutory Definitions of Words and Phrases (1904), Volume 2 .............................. 35

Merriam-Webster. com. Merriam-Webster, n.d. Web. 21 July 2016 ............................................ 32

Rules

R. App. P. 20 ................................................................................................................................... 9

R. Civ.P 54 (B) ................................................................................................................................ 9

Treatises

Pomeroy's Eq. Jur. § 1342 ............................................................................................................ 16

Restatement (Third) of Prop.: Servitudes § 1.1 (1) (2000) ............................................................ 10

Restatement (Third) of Prop.: Servitudes § 1.5 (2000) ..................................................... 10, 15, 27

Restatement (Third) of Prop.: Servitudes § 1.5(1) (2000) ............................................................ 10

Restatement (Third) of Prop.: Servitudes § 4.1 ............................................................................ 10

Restatement (Third) of Property: Servitudes §4.5 ........................................................................ 28

IV

-------.---~~~----~---------~------

I. ASSIGNMENTS OF ERROR

1. The Circuit Court properly granted summary judgment in favor of Plaintiff Gary Dobbs

because the 1976 Option agreement was not appurtenant to the Slaughterhouse parcel and is held

by Gary Dobbs to this date.

2. The Circuit Court properly concluded that the 2007 McElroy Option Agreement and/or

the Waiver constituted a decision to sell, assign or otherwise dispose of the 34.11 acre tract which

triggered the right to exercise the 1976 Option Agreement.

3. The Circuit Court properly denied Defendant McElroy's motion for summary judgment

relative to Plaintiff s claims of slander oftitle, tortious interference, civil conspiracy, and wrongful

possessIOn.

II. STATEMENT OF THE CASE

Lyle Dobbs, father of Plaintiff Gary Dobbs and Defendant Terry Dobbs, purchased a 37

acre tract ofland in Liberty District, Marshall County, West Virginia, alongside Cameron Ridge

Road on September 11, 1956. 1 At or near that time, Lyle Dobbs also owned an additional

approximately 60 acres, adjacent to the 37 acre tract, upon which the family homestead was

located. 2 On February 8,1971, Lyle Dobbs and his wife Pauline Dobbs3 sold a 1.74 acre parcel

of the 37 acre tract to Mack and Wanda Johnson, reducing the size of the parent tract to 35.26

I [App. at 000134-000135].

2 [App. at 000221-000229]. The 60 acres was actually comprised of two parcels which were 15.62 acres and 44.21 acres respectively (Total = 59.83 acres).

3 Pauline Dobbs is the Step-mother of Plaintiff Gary Dobbs and Defendant Terry Dobbs.

1

acres.4 Lyle Dobbs passed away on May 24,1975. 5

After the death of Lyle, the Dobbs family engaged in a series of transactions with respect

to their real estate. At that time, Terry and Catherine Dobbs did not have a place of their own to

live, so Gary Dobbs agreed to sell Terry and Catherine Dobbs the 60 acre homestead along with

the adjoining 35.26 acre tract, minus a 1.15 acre parcel (34.11 remaining acres) which Gary and

Terry were to jointly own in an effort to start a slaughterhouse business. 6 Although Gary was kind

enough to sell the family homestead to his brother so that he could have a place to live, Gary

wanted to ensure that at least a portion of the property remained with his immediate family.7 To

this end, Gary Dobbs insisted that before he would deed the 60 and 34.11 acre tracts, that Terry

and Catherine Dobbs sign an agreement giving Gary Dobbs the option to purchase the 34.11 acre

tract for the sum of $4,000.00 in the event of the death of Terry Dobbs or if Terry and Catherine

Dobbs "decide to sell, assign or otherwise dispose of' the 34.11 acre tract. 8

Following the family division of property, Gary and Terry Dobbs operated a

slaughterhouse business on the 1.15 acre tract until approximately 1979.9 At that time the business

was not performing financially, and personal difficulties developed between the Dobbs brothers

and in particular between Gary Dobbs and his sister-in-law Catherine Dobbs. As a result, Terry

4 [App. at 000143-000145].

5 [App. at 000119].

6 Deposition of Gary Dobbs at 78:3-79:101 [App. at 000282].

7 Deposition of Gary Dobbs at 16:5-12; 77:19-21; 78:3-4; 81:4-9 and Errata Sheet at 14:4/[App. at 000266; 000282; 000283; and 000308].

8 [App. at 000946-000948] (Emphasis Supplied).

9 [App. at 000252-000256].

2

and Catherine Dobbs filed a lawsuit against Gary Dobbs in the Circuit Court of Marshall County,

West Virginia: (1) to wind up the slaughterhouse business; (2) alleging that Catherine Dobbs had

sustained personal injuries as a result of a battery by Gary Dobbs; and (3) attempting to invalidate

the option to purchase the 34.11 acre tract contained in the April 23, 1976 Agreement. 10

As part of the dissolution of the partnership, the court ordered that the 1.15 acre

slaughterhouse property be placed for sale at public auction. II Plaintiff Gary Dobbs was the high

bidder at $47,500.00Y Further, the court, by Order entered May 30,1989, found that "Catherine

A. Dobbs failed to prove her claim against Gary R. Dobbs, defendant, for personal injuries

allegedly suffered by her."13 Additionally, by order entered June 22, 1989, the court denied Terry

and Catherine's motion to set aside the April 23, 1976 Option to purchase finding that:

" ... the agreement containing the buy-out option in regard to the 37 acres of land (Tract I) purchased by Terry Dobbs and prepared by the attorney for the estate of Lyle Dobbs, deceased, is a valid agreement and that both the plaintiffs and defendants understood and read the agreement before being executed by the parties. It is umeasonable for this Court to believe that either the plaintiffs or defendants failed to read the agreement before execution or signing.,,14

In or about September of 2006, Defendants Terry and Catherine Dobbs were approached

by McElroy who intended to mine the Pittsburgh seam of coal underlying the 60 and 34.11 acre

tracts. IS Terry and Catherine Dobbs retained counsel and negotiations began with respect to the

10 [App. at 000252-000256].

II [App. at 000253].

12 [App. at 000253].

13 [App. at 000253].

14 [App. at 000258-000259].

15 [App. at 000261].

3

sale of the properties. 16 Ultimately, on August 31,2007, Terry and Cathe~ine Dobbs executed an

Option Agreement ("McElroy Option,,)17 for $25,000.00 whereby they granted McElroy the right

to purchase both the 60 acre tract for $261,000.00 and the 34.11 acre tract for $1,514,000.00 for

the total sum of$1,775,000.00. The option agreement states in pertinent part:

1. GRANT OF OPTION: In consideration· of the sum of Twenty-Five Thousand Dollars ($25,000.00), option money, paid by Optionee to Optionor, the receipt of which is hereby acknowledged, Optionor herby gives and grants to Optionee, or any affiliate of Optionee to which Optionee may assign its interest in its sole discretion, the exclusive right or option to purchase from Optionor at any time within ninety (90) days from the date hereof, the following described land and improvements thereon, if any, situate in Liberty Tax District, Marshall County, West Virginia (hereinafter called "Option Property"), for the total purchase price set forth below:

Property Description: Three Tracts. Liberty District. more particularly described in Marshall County Deed Book 459. at page 178. and being:

Tax Map No.2, Parcel No. 31 (15.62 acres);

Tax Map No.2, Parcel No. 32 (44.21 acres); and

Tax Map No.6, Parcel No. 16 (34.11 acres)

Purchase Price: $1.775.000.00 18

Significantly, at the time of the execution of the August 31, 2007 McElroy Option

Agreement Defendants Terry and Catherine Dobbs as well as Defendant McElroy had specific

knowledge concerning Gary Dobbs' existing option to purchase the 34.11 acre tract, as the

McElroy option agreement further states:

3. DUE DILIGENCE AND CLOSING: In the event of its exercise of this

16 [App. at 000261].

17 [App. at 000229-000232].

18 [App. at 000229].

4

Option, Optionee shall have sixty (60) days from the date of mailing its notice under paragraph 2 hereof, to tender closing of the purchase, inclbding payment of the Purchase Price for the Option Property .... Thereupon Optiono~ shall convey, or cause to be conveyed, good and marketable title to the Option Property above described or designated, to Optionee, or Optionee's nominees, designated affiliate, successors or assigns, 19 by deed of general warranty, in form acceptable to Optionee, in its unlimited discretion; provided, however, that in the event instruments of record as to the above referenced 34-acre Parcel preclude Optionors from conveying title to Optionee, in Optionee's reasonable judgment, Optionor may satisfy its conveyance obligations regarding said Parcel by delivering to Optionee a waiver of liability associated with Optionee's mining operations, inform and content satisfactory to Optionee.2o

On November 29, 2007, McElroy exercised its right under the August 31, 2007 option

agreement to extend the option period for an additional ninety (90) days by tendering a second

$25,000 payment.21 At some point between November 29, 2007 and February 7, 2008 McElroy

had decided to exercise its option agreement with Terry and Catherine Dobbs and counsel for the

respective parties began preparations to close the real estate transaction. In fact at that time,

counsel for both Terry and Catherine Dobbs, as well as counsel for McElroy, again demonstrated

specific knowledge of Plaintiff Gary Dobbs' existing option to purchase the 34.11 acre tract and

began taking steps to intentionally and improperly interfere with Plaintiffs option. On February

7,2008 counsel for McElroy sent a letter to Counsel for the Dobbs Defendants stating:

Please find enclosed a draft Closing Statement for your review and approval.

We are also preparing a Deed, which will be finalized as soon as we address the issue of a potential repurchase right which you raised regarding one of the Dobbs parcels. We will be sending the Closing Statement to Consol so please advise me of any comments as soon as possible.22

19 Note McElroy's use of the tenn "successors and assigns" in conjunction with an option right that is clearly not appurtenant to any tract ofland. The tenns, as in the case at bar, signify only that the option to purchase is transferable.

20 [App. at 000229]. (Emphasis Supplied).

21 [App. at 000310-000311].

22 [App. at 000313].

5

The Dobbs Defendants and McElroy closed their real estate transaction on February 15,

2008.23 At the closing Terry and Catherine Dobbs deeded the 60 acre tract to McElroy; however,

they did not deed the 34.11 acre tract to McElroy. Instead Terry and Catherine Dobbs signed a

"W AIVER, RELEASE AND EASEMENT,,24 as elected by McElroy pursuant to provision 3 of

the August 31, 2007 McElroy option agreement.25 Terry and Catherine Dobbs received

$261,000.00 for deeding the 60 acre tract26 and $1,514,000.00 for executing the Waiver, Release

and Easement on the 34.1127 acre tract for a total of $1,775,000.00. Pursuant to the Waiver,

Release and Easement, Terry and Catherine Dobbs waived and released any and all claims arising

from or as a proximate result of future mining operations conducted by McElroy with respect to

the 34.11 acre tract. 28 Also, by that same document, Terry and Catherine Dobbs granted an

easement and right-of-way to McElroy which provided the coal company with unlimited rights to

enter upon the property "to travel over and across said lands, and conduct upon said lands surface

activities deemed necessary in [McElroy's] discretion in relation to its underground mining

operations, including, but not limited to, drilling, excavating, plugging active or abandon (sic) gas

wells, surveying, installations of entries and shafts, and any and all other activities deemed

23 [App. at 000315-000316]. Significantly, the document dated 2/15/08 is titled "Closing Statement Real Estate Sale Terry L. Dobbs and Catherine A. Dobbs" (Emphasis Supplied).

24 [App. at 000234-000247].

25 [App. at 000229-000230].

26 The 60 acre tract had a house and bam located on it.

27 The 34.11 acre tract had no structures located on it.

28 [App. at 000234-000247].

6

necessary by [McElroy]. ,,29

Further, as part of the execution of the February 15,2008 Waiver,Release and Easement

Agreement, Terry and Catherine Dobbs made certain representations and warranties to McElroy

including a promise to testify against and to cooperate in the defense of any future claims asserted

by Gary Dobbs with respect to his option to purchase the 34.11 acre tract created by the April 23,

1976 Agreement. The Waiver, Release and Easement states:

Warranties and Representations

2. . .. [McElroy] acknowledges its awareness of an Agreement dated April 23, 1976, of record in Marshall County Deed Book 459, Page 357 Between [Terry and Catherine Dobbs] and Gary R. Dobbs. Among other matters, the Agreement purports to create a right in Gary R. Dobbs to purchase the property upon the death of Terry L. Dobbs, or the decision of [Terry and Catherine Dobbs] to "sell, assign or otherwise dispose" of the property. [Terry and Catherine Dobbs] warrant and represent that it is their understanding that the intention of said document was to create a right appurtenant to the 1.15 acre tract of ground conveyed by [Terry and Catherine Dobbs] to Gary R. Dobbs, and subsequently conveyed by Gary R. Dobbs to others. It is the good faith belief of [Terry and Catherine Dobbs] that Gary R. Dobbs has no further right to purchase the subject land. [Terry and Catherine Dobbs] agree, when asked, to testify, under oath to the above understanding as to the intent and purpose of said April 23, 1976 Agreement, and further to cooperate with [McElroy] in the defense of any claim which might be asserted by Gary R. Dobbs, or his assigns, arising out of or related to said April 23, 1976 Agreement. 3o

At no time subsequent to the execution of the August 31, 2007 McElroy option agreement

or the February 15,2008 Waiver, Release and Easement has Terry and Catherine Dobbs provided

notice to Gary Dobbs of their decision to sell, assign or otherwise dispose of the 34.11 acre parcel

via certified mail as required by the April 23, 1976 Agreement.

29 [App. at 000236].

30 [App. at 000235-000236].

7

III. SUMMARY OF ARGUMENT

The Circuit Court properly concluded that the April 23, 1976 Option to purchase was not

appurtenant to the slaughterhouse tract because the express language used in the agreement, the

structure of the Dobbs family's transactions, the surrounding circumstances and the subsequent

admissions and conduct of the parties all indicate that the option to purchase the 34.11 acre tract

was intended as an in gross and transferable right. Further, the Circuit Court also properly

concluded that Gary Dobbs retained the option to purchase the 34.11 acre tract despite selling the

slaughterhouse property because the April 23, 1976 Option was not appurtenant to the

slaughterhouse property and in fact was not an interest in said property because the option to

purchase did not benefit the slaughterhouse property in any way. Finally, the Circuit Court

properly denied Defendants' motions for summary judgment with respect to Counts II, IV, V and

VI of Plaintiff s complaint because Plaintiff has presented sufficient evidence to support a prima

facie case for each count. Through discovery, Plaintiff has learned the details of the clandestine

negotiations between Defendants McElroy and Terry and Catherine Dobbs which stretch back into

September of 2006. The documents produced create a disturbing picture whereby Defendants had

specific knowledge of Gary Dobbs' option to purchase the 34.11 acre tract and then took elaborate

measures to intentionally and maliciously interfere with Gary Dobbs' contractual rights through

the concoction of the use ofa Waiver, Release and Easement instead of an outright conveyance of

the 34.11 acre tract. It is apparent that the Waiver, Release and Easement which was executed was

an artifice or indirection attempted to cover up what was in reality a sale of the 34.11 acre tract.

IV. STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Respondent believes that the decisional process would be significantly aided by oral

argument. Respondent further believes that this case is suitable for oral argument under R. App.

8

I P. 20 because it potentially involves an issue of first impression regardin~ whether the "right of

I

subjacent support" is an estate in land under West Virginia law. Respondent denies that the Circuit

Court's ruling is in conflict with this Court's decision in Cottrill v. Ranson, 200 W.Va. 691, 697,

490 S.E.2d 778, 784 (1997) regarding the term "assigns" as used in real estate agreements.

v. ARGUMENT

A. STANDARD OF REVIEW.

Findings of fact made by the circuit court are reviewed under a clearly erroneous standard,

while conclusions oflaw reached by the circuit are reviewed de novo.3l

B. THE CIRCUIT COURT CERTIFIED ITS RULING FOR APPELLATE REVIEW PURSUANT TO R.CIV.P. 54(B).

Respondent agrees that the Circuit Court certified its January 18, 2018 order granting

Plaintiff Gary Dobbs summary judgment for appellate review pursuant to R. Civ.P 54 (B).

C. THE 1976 OPTION IS NOT APPURTENANT TO THE SLAUGHTERHOUSE TRACT.

A servitude is a legal device that creates a right or obligation that runs either with land or with

an interest in land.32 It is obvious that the burden of the April 23, 1976 Option to purchase lies

with the 34.11 acre tract; however, the dispute between the parties is about the nature of the benefit

of this option to purchase. The benefit, like the burden, of a servitude may be one of two kinds: in

gross or appurtenant. A benefit is appurtenant if the right to enjoy that benefit is tied to the

31 State ex reI. United Mine Workers of Am., Local Union 1938 v. Waters, 200 W. Va. 289, 296, 489 S.E.2d 266,273 (1997).

32 See Restatement (Third) of Prop.: Servitudes § !.l(I) (2000). Although it has not been specifically addressed in West Virginia, Plaintiff has assumed for purposes of this appeal that a preemptive right, right of first refusal and/or option to purchase land which has been recorded in the public records qualifies as an interest in real property. See Syl. Pt. 2, Smith v. VanVoorhis, 170 W. Va. 729, 730, 296 S.E.2d 851, 852 (1982) ("A pre-emptive right is a sufficient executory interest to make if subject to the rule against perpetuities.").

9

I ownership of a particular parcel of land,33 while a benefit is in gross if it is not appurtenant, that

is, if the benefit may be held without regard to whether one owns any particular land.34 Further, "a

servitude should be interpreted to give effect to the intention of the parties ascertained from the

language used in the instrument, or the circumstances surrounding creation of the servitude, and

to carry out the purpose for which it was created.,,35

An examination of the April 23, 1976 Agreement36 reveals that it was the intent of the parties

to grant Gary Dobbs an option to purchase the 34.11 acre parcel which was not appurtenant to the

slaughterhouse tract for reasons which include the following:

1. The Express Terms of the April 23, 1976 Agreement do not Provide that the Option to Purchase is Appurtenant to the Slaughterhouse Tract.

The April 23, 1976 Agreement states in pertinent part:

*** AGREED, that in the event of the death of said Terry L. Dobbs; or in the event

the said Terry L. Dobbs and Catherine A. Dobbs, decide to sell, assign, or otherwise dispose of the aforesaid described tract or parcel of land, that the said Gary R. Dobbs, his heirs, devisees or assigns shall have the option to purchase said tract or parcel ofland, for the full consideration of Four Thousand Dollars ($4,000.00).

It being provided that in the event of the death of said Terry L. Dobbs, said Gary R. Dobbs, his heirs, devisees, or assigns shall have thirty (30) days after said death in which to pay said sums of Four Thousand Dollars ($4,000.00) to said Catherine A. Dobbs, if she be surviving, or to the heirs, devisees, executors, or administrators of said Terry L. Dobbs or the said Catherine A. Dobbs, and upon receipt thereof, said Catherine A. Dobbs, or said heirs or devisees, or executor, if empowered to convey said property, shall deliver a properly executed and acknowledged deed, conveying the aforesaid described tract or parcel of land, free and clear of all liens and encumbrances, to said Gary R. Dobbs, or his heirs, devisees, or assigns, and

33 See Restatement (Third) of Prop.: Servitudes § 1.5(1) (2000).

34Id. at § 1.5(2).

35 Restatement (Third) of Prop.: Servitudes § 4.1.

36 [App. at 000946 - 000948].

10

I

FURTHER, in the event said Terry L. Dobbs and Catherine A. Dobbs, his wife, shall determine to sell, assign or otherwise dispose of the ~forementioned tract or parcel of land, then in such event notice in writing thereof shall be given to said Gary R. Dobbs, his heirs, devisees or assigns, certified mail, return receipt requested, and said Gary R. Dobbs, his heirs, devisees, or assigns, shall have thirty (30) days in which to pay the said Four Thousand Dollars ($4,000.00), upon receipt of which said Terry L. Dobbs and Catherine Dobbs, his wife shall deliver a properly executed and acknowledged general warranty deed, conveying said tract or parcel ofland to said Gary R. Dobbs, or his heirs, devisees, or assigns.37

*** In TBI Exploration, Inc., v. Belco Energy Corp., 220 F.3d 586, 2000 WL 960047 (5thCir.

2000)38 the issue before the United States Court of Appeals was whether a covenant to drill

exploratory wells contained within a Participation Agreement was a covenant running with the

land and therefore enforceable against Defendant who had taken an assignment of the Agreement.

Plaintiff argued that the following language contained in the agreement demonstrated that the

parties to the Agreement intended for the covenant to run with the land: "This Agreement shall be

binding upon and inure to the benefit of the parties hereto and their respective successors and

assigns.,,39 In conducting its analysis the court surveyed Colorado law, which governed the

Agreement at issue, and stated:

"Our survey of ... case law has not revealed any precedent that states that a covenant running with the land must be expressed in specific or magical terms. However, in the cases that have recognized a covenant running with the land, the covenants were in express terms. See Lookout 867 P.2d at 75 40 ("covenants herein set forth shall run with the land and bind the present, owner, its successors and assigns ... ");

37 [App. at 000946-000948].

38 [App. at 000950-000953].

39 TEl Exploration, Inc. v. Belco Energy Corp., 220 F.3d 586,2000 WL 960047 at *4.

40 Lookout Mountain Paradise Hills Homeowners Ass'n v. Viewpoint Ass'n v. Viewpoint Assocs., 867 P.2d 70 (Colo.Ct.App. 1993).

11

, I I

Cloud, 857 P.2d at 44041 ("the following ... covenants ... lhall be deemed to run I

with the land. shall be a benefit and burden to Declarant. its! successors and assi£ns ~ " , "-'

and any person acquiring or owning an interest in the real property and improvements, their grantees, successors, heirs, ... "); Brown, 676 P.2d at 17642

("These Covenants shall run with said property, and shall be binding upon and inure to the benefit of the Developer, each subsequent owner of said real real property, or any part thereof, and each successor in interest of each such subsequent owner. ,,),,43

The court compared the "broad and vague language in the Participation Agreement to the express

language in the cases cited above" and "determined that the Participation Agreement falls short of

expressing an intent for the covenant to drill exploratory wells to run with the land."44

Just as in TBl Exploration Inc., the language contained in the April 23, 1976 Agreement

falls well short of expressing an intent for the option to purchase to run with the slaughterhouse

tract. If the parties to the April 23, 1976 Agreement had intended the opti.on to purchase to be

appurtenant to the slaughterhouse tract then the Agreement would have contained express

language to the effect that "the option to purchase shall run with the land" and/or "the option to

purchase shall be appurtenant to said tract." The absence of express language of this nature is

clear evidence that the parties did not intend the April 23, 1976 Option to purchase to be

appurtenant to the slaughterhouse property. Additionally, the view espoused in TBl Exploration

Inc., is corroborated by examples from West Virginia case law.45 Further, even Defendant

41 Cloud v. Associations a/Owners, Satellite Apartment Building, 857 P.2d 435 (Colo.App. 1992).

42 Brown v. McDavid, 676 P.2d 714 (Colo.App. 1983).

43 TBI Exploration, Inc. v. Belco Energy Corp., 220 F.3d 586, 2000 WL 960047 at *4 (Emphasis in original).

44Id.

45 See Syl. Pt. 4, Allemong v. Frendzel, l78 W.Va. 601, 363 S.E.2d 487 (1987) ("A: restrictive covenant which provides 'that no alcoholic beverages shall be sold on said premises, and this covenant shall Tun with the land' is valid") (emphasis supplied); Morrison Department Store Co. v. Lewis, 96 W.Va. 277, 122 S.E. 747, 749 (1924) (Respective owners of two adjoining city lots enter into a party wall agreement which states "the parties hereto, for themselves, their successors, heirs, administrators and assigns, do covenant each with the other that the agreement

12

McElroy uses express language such as "runs with the land" in its real e1tate instruments when i

intending to create an appurtenant easement. 46

Additionally, it is also significant that the option to purchase was granted specifically, by

name, to Gary Dobbs. Had the parties intended the option to purchase to be appurtenant to a tract

of land, the option to purchase would have been granted to "the owner of the slaughterhouse

property" or "the owner of the 1.15 acre tract." Additionally, similar to TBI Exploration Inc., the

existence of terminology such as "heirs, devisees or assigns" in the April 23, 1976 Agreement falls

well short of an expression of intent that the subject option to purchase is appurtenant to the

slaughterhouse tract. In fact it is more likely that the existence of such terminology in the April

23, 1976 Agreement is nothing more than an agreement that Gary Dobbs' option to purchase was

assignable at Gary's will and pleasure.

The characterization ofthe April 23, 1976 Option as in gross and transferable is confirmed

by an illustration in the Restatement (Third) oj Property: Servitudes:

"Rose, the owner of Blackacre, granted Alice and her heirs and assigns an option to purchase Blackacre for $150,000. The recorded option agreement provided that it was exercisable for a five-year period, and that it ran with the land and was binding on Rose and her heirs and assigns. Alice owned no land at the time she acquired the option. Three years later, Alice sold the option to Delia and Rose transferred Blackacre to Tina. Delia then notified Tina that she exercised the option to purchase. Tina refused to transfer Blackacre to Delia. In the absence of other facts or circumstances, Delia is entitled to a conveyance of Blackacre for $150,000.

herein contained shall be covenants running with the land."); Neekamp v. Huntington Chamber of Commerce, 99 W.Va. 388,129 S.E. 314, 315 (1925) (Deed contained a restriction "that there shall not be erected on said premises any building other than for dwelling or residence purposes ... The covenants herein contained shall run with the land and the provisions herein shall extend to the heirs and successors and assigns of the parties hereto.").

46 See McElroy EASEMENT AND RIGHT-OF-WAY ("This Easement, and each and all provisions hereof, shall constitute covenants rWlIling with the land for the benefit of Grantee, its successors and assigns.") [App. at 000242].

13

The benefit held by Alice was in gross and transferable. The burden ran with the land to Tina." 47

Similar to the Restatement Illustration, the words "heirs and assigns" in the April 23, 1976

Option are used to indicate that the option is transferable and do not indicate that the option is

appurtenant to the slaughterhouse tract. Further, the illustration indicates that if a grantor intends

that a servitude should be appurtenant to a tract of land then specific words such as "runs with the

land" or similar variations should be utilized.

Defendants rely upon Robinson v. Edgell, 57 W.Va. 157,49 S.E.1027 (1905) for the

contention that the West Virginia Supreme Court has found that the phrase "defendants and their

assigns" when used in a deed creates a covenant running with the land; however, Robinson was a

case which involved a negative covenant restricting the sale of alcohol on a particular piece of

property. The exact language examined in the Robinson deed was as follows:

"This writing prohibits the sale of intoxicating liquors in any manner whatever on the premises hereby conveyed, and this is part of the consideration."

Contrary to Defendants' contention the Court found that the covenant was not of the kind at law

which technically runs with the land,48 but would enforce the covenant under the Court's

discretionary equitable powers.49

47 See Restatement (Third) of Prop.: Servitudes § 1.5 (2000).

48 Robinson, 57 W. Va. 157,49 S.E. 1027, 1028 (1905) ("Covenants restraining the use of real property afford an instance of that class of cases in which equity will charge the conscience of a grantee of land with an agreement relating to the land, although the agreement neither creates an easement, nor runs with the, land .... Pomeroy's Eq. Jur. § 1342, says such covenants will be specifically enforced in equity, by means of an inju~ction, not only between the immediate parties, but also against subsequent purchasers with notice, even when the covenants are not of the kind which technically run with the land. The injunction in this class of cases is granted almost as a matter of course upon a breach of the covenant.").

~9 Robinson, 57 W. Va. 157,49 S.E. 1027, 1030 (1905).

14

Robinson is further distinguishable from the case at bar on a number of grounds. First, the

language at issue in Robinson did not in any way involve the interpretation of the phrase "heirs,

devisees or assigns" or any variation thereof. Second, Robinson involved the interpretation of the

burden of a negative covenant related to alcohol use which could only apply to the particular parcel

at issue. Third, in Robinson, the negative covenant was contained in the Deed conveying the

property at issue, whereas in the present case the April 23, 1976 Option to purchase was contained

in a stand alone agreement separate and distinct from the slaughterhouse deed.

Finally, at a minimum, the failure of Defendants Terry And Catherine Dobbs to use specific

language such as "runs with the land" or "appurtenant" or similar terms in the April 23, 1976

Option Agreement creates ambiguity as to whether said option to purchase runs with any particular

tract of land and therefore resort to extrinsic evidence to interpret the same is proper.

2. The Creation of the Option to Purchase in an Agreement that is Separate and Apart from the Slaughterhouse and 34.11 Acre Tract Conveyances Indicates that the Option to Purchase is not Appurtenant to the Slaughterhouse Property.

Lyle Dobbs, father of Plaintiff Gary Dobbs and Defendant Terry Dobbs, passed away on

May 24, 1975. After the death of Lyle, the Dobbs family engaged in a series of three (3) real estate

transactions. First, the slaughterhouse property was conveyed to Gary and Terry Dobbs. 5o The

slaughterhouse deed was signed by the last executing party on May 14, 1976.51 Then nearly a

month later the sixty (60) acre homestead, along with the adjacent 34.11 acre tract, were conveyed

to Terry and Catherine Dobbs. 52 Additionally, at this same time the Agreement creating the option

50 [App. at 000955-000959].

51 [App. at 000958].

52 [App. at 000961-000966].

15

to purchase in favor of Gary Dobbs was executed. The deed to the 34.11 tre tract. as well as the I ' i

Option Agreement were executed on June 12,1976.53

Since these transactions occurred within a time span of thirty (30) days, it is clear that if

the parties had intended the option to purchase to be appurtenant to the slaughterhouse property

they would have included it in the slaughterhouse deed and/or the deed conveying the 34.11 acre

tract. However, the parties did not include the option to purchase in either the slaughterhouse deed

or 34.11 acre tract deed and instead drafted a separate instrument creating the option to purchase

in favor of Gary Dobbs. The overall structure of the Dobbs family real estate transactions,

including the use of a separate instrument to create the option to purchase in favor of Gary Dobbs,

demonstrates that the option to purchase was not intended to be appurtenant to the slaughterhouse

property. Alternatively, at a minimum, the use of a separate agreement to create the option to

purchase separate and apart from the slaughterhouse deed creates ambiguity as to whether said

option to purchase runs with any particular tract of land and therefore resort to extrinsic evidence

to interpret the same is proper.

3. The Option to Purchase the 34.11 Acre Tract does not in any way Benefit the use of the Slaughterhouse Property.

Defendants argue that the sole purpose of the April 23, 1976 Option Agreement was to

benefit the owner of the slaughterhouse property. 54 Defendants further argue that ownership and

control of the adjacent 34.11 acre tract was necessary to the operation of the slaughterhouse

business because of the need to use a pipeline leading to a spring on the 34.11 acre tract and

53 [App. at 000948 and 000966].

54 The prefatory language and/or references to the slaughterhouse propertylbusiness in the April 23, 1976 Option Agreement is merely a recitation of history and has no legally operative effect.

16

I

because of the need to spread blood and manure on said tract. Howev~r, this cannot be true,

because the right to utilize the pipeline leading to the spring and the right to spread blood and

manure on the 34.11 acre tract were already embedded as appurtenant easements within the deeds

conveying the slaughterhouse property to Gary and Terry Dobbs and conveying the 34.11 acre

tract to Terry and Catherine Dobbs.

The slaughterhouse deed contains the following language:

*** "There is also granted to the parties of the second part, their heirs and

assigns, the use of a spring located on the remainder of said thirty-seven (37) acre tract, together with a right-of-way and easement for a pipe line leading from said spring to the parcel hereby conveyed, together with the right of ingress, egress and regress on said remainder of said thirty-seven (37) acre tract, for the purpose of laying, maintaining, repairing, replacing or removing said pipe line and for the purpose of cleaning and improving said spring.

There is also granted to the parties of the second part, their heirs and assigns, the right to spread manure and blood from the keeping and slaughtering of cattle on the tract hereby conveyed, upon the remainder of said thirty-seven (37) acre tract, at such place as may be agreed upon by the parties of the second part, their heirs and assigns and the owners of the said remainder of said thirty-seven (37) acre tract, and as approved under the pertinent health regulations and practices."s5

*** Further, the 34.11 acre deed states:

*** "And this conveyance is subject to that certain provision contained in said

deed for the use by the said Gary R. Dobbs and Terry L. Dobbs, their heirs and assigns, of a spring, together with the right-of-way and easement for a pipe line leading from said spring to said 1.150 acre tract, together with the right of ingress, egress and regress, for the purpose of laying, maintaining, repairing, replacing, or removing said pipe line and for the purpose of cleaning and improving said spring; and is further subject to the use by said Gary R. Dobbs and Terry L. Dobbs, their heirs and assigns, the right to spread manure and blood from the keeping and slaughtering of cattle, and other animals, on said 1.150 acre tract, upon the tract conveyed, as such place as may be agreed upon by the said Gary R. Dobbs and

55 [App. at 000956-000957].

17

I Terry L. Dobbs, their heirs and assigns, and the owndrs of the tract h~reby conveyed, and as approved under pertinent health regulatio'ns and practices.,,)6

Since the right to utilize the pipe line leading to the spring and to spread blood and manure

on the 34.11 acre tract are already embedded as appurtenant easements in the slaughterhouse

deed, there is no need for the owner of the slaughterhouse business to own or control the

adjacent 34.11 acre tract. In fact, since the right to use the spring and spread blood and manure

already run with the slaughterhouse property, ownership of the adjacent 34.11 acre tract

provides no benefit to the owner of the slaughterhouse property in the use of said property.

Therefore the April 23, 1976 Option to purchase is not an interest in the slaughterhouse

property. Since any benefit obtained by the owner of the option to purchase is not related to

ownership ofthe slaughterhouse property, the option to purchase cannot be appurtenant to said

tract. Alternatively, at a minimum, the fact that the right to use the spring and spread blood and

manure on the 34.11 acres tract are already imbedded in the respective deeds creates ambiguity

as to whether said option to purchase runs with any particular tract of land and therefore resort

to extrinsic evidence to interpret the same is proper.

4. The Underlying Purpose of the April 23, 1976 Option Agreement was to keep the 34.11 Acre Tract in Gary Dobbs' Family.

Gary Dobbs has testified that the true underlying purpose of the April 23, 1976 Option

Agreement was to keep the 34.11 Acre Tract within Gary's immediate family.57 Gary Dobbs

testified at his deposition as follows:

56 [App. at 000964].

57 In their brief, Defendants allege that Gary Dobbs admitted that the purpose of the April 23, 1976 option agreement was to benefit the slaughterhouse business. However, the passage cited by Defendants is taken out of context as it is clear that Gary Dobbs misunderstood the question as explained in his errata sheet and as corroborated by the remainder of the testimony in his deposition.

18

Q. -- can you tell me your understanding of what that paragraph says? And take a minute and read it. Take as long as you like.

A. Well, I can explain to you. This tract of ground, this 34.11 or whatever, that was a tract of ground that joined the slaughter house. I wanted to keep that for my -- our -- in the family. And we had this $4,000 option in it to get it back if ever they disposed of it, done away with it, or something happened to Terry and Cathy, died or deceased, I was wanting it back to keep in the family.58

*** Q .... That's -- that was really the only question I had whether you knew if it was modified. It wasn't like a trick question. I just wanted to make sure that was the last terms of it. You mentioned that one of the purposes of this Agreement was to keep the family farm together; correct?

A. Yes. 59

*** Q. If the purpose was to keep them all together, why weren't the other two tracts -- why weren't the same language put in about the right to buy it back?

A. Do you want me to say?

Q. Yes.

A. Terry and Cathy had to have a place to live. And I figured they have the house and their bam wherever they want. And I wanted -- if anything occurred, I wanted to keep the 34.11 acres in my family. I lived in town. I didn't have much at the time. So I let them have the option of using it. If they ever sold it or disposed of it... 60

58 Deposition of Gary Dobbs at 16:2-12/[App. at 000972].

59 Deposition of Gary Dobbs at 77: 15-2li[App. at 000988].

60 Deposition of Gary Dobbs at 78:3-14/[App. at 000988]. See also Errata sheet for Deposition of Gary Dobbs/[App. at 000992].

19

*** Q. . .. Is there any reference in this document that it is being done for -- to keep the property together as part of the family farm? ...

A. I wanted to keep it in my family, yes. 6J

As the previously cited testimony indicates, at the time of Lyle Dobbs' death, Terry and

Catherine Dobbs did not have a place of their own to live, so Gary Dobbs agreed to sell them the

60 acre homestead along with the adjacent 34.11 acre tract. However, even though Gary was kind

enough to sell the family homestead and the adjacent 34.11 acre tract to his brother, he wanted to

ensure that at least a portion of the Dobbs property remained within his family. It is important to

note that by deeding the homestead and acreage to his brother, Gary was giving up the one-half

(1/2) interest in the property which was part of his inheritance. The language relating to the

consideration paid for the option to purchase in the April 23, 1976 Agreement corroborates this:

NOW THEREFORE, in order that there may be continuity in the conduct of said business and that the heretofore described tract or parcel of land may be available for the use of said business, it being contiguous thereto and said l.150 acre tract having been a part thereof and also in consideration of the sum of One Dollar ($1.00) paid by the said Gary R. Dobbs to the said first parties, receipt of which is hereby acknowledged, and in the further consideration of the conveyance by the said Gary R. Dobbs of his undivided interest in the aforesaid described tract or parcel of land to said parties of the first part, it is therefore, ... 62

Therefore even if, as Defendants argue, the April 23, 1976 Option Agreement was partially

intended to benefit the operation of the slaughterhouse business, which Plaintiff denies, the option

to purchase the 34.11 acre tract also had a separate and distinct purpose. The purpose was to allow

61 Deposition of Gary Dobbs at 81 :4-9/[App. at 000989].

62 [App. at 000947] (Emphasis supplied).

20

I

Gary Dobbs to keep a portion of the Dobbs property within his family becLse he was voluntarily I

relinquishing his inherited rights to the property in exchange for allowing his brother to have a

place to live. Since, at a minimum, a separate and distinct purpose of the April 23, 1976 Option to

purchase was to allow Gary Dobbs to keep a portion of the Dobbs property within his family, the

option to purchase is not appurtenant to the slaughterhouse tract.

Additionally, Defendant Terry Dobbs admitted that Gary Dobbs' Option to Purchase

remains valid to this date. Further, this fact was corroborated by the testimony of Terry's wife,

Catherine Dobbs. Terry Dobbs testified at his deposition as follows:

Q But you understand that Gary Dobbs has a right to buy your property in the event you pass away first; right?

A Yes.

Q So that still exists today? He still has that right today; right?

A Yes.

Q Or if you sell, assign or otherwise dispose of the aforesaid described tract or parcel of land. Do you see that?

A Yes.

Q That you have to give him an option to buy for the full consideration of $4,000. Do you see that?

A Yes. 63

***

Q Let me ask you. Do you think that's fair, then, with that agreement that your brother gets

63 Deposition of Terry Dobbs at 61:1-1S/[App. at 001010].

21

shut out totally from the million seven or whatever the heck you made on this thing, most of it for the thirty-four acres that has a specific agreement? Do you think that's fair to treat a brother that way, Mr. Dobbs?

A I don't knoW.64

Further, Terry Dobbs' admission is corroborated by the testimony of his wife, who was

also a party and signatory to the April 23, 1976 Agreement. Catherine Dobbs testified as follows:

Q You say you didn't want to sell. You didn't want somebody else to get a piece of your money is what it was. That's what this whole thing is. The coal company wanted the property. They didn't care how they got it, and you came in and you wanted to make sure that there were no options somebody else had whether it had been Fabrizio or Gary before, so you had the paperwork done up so that they wouldn't get any.

A No. That's not right.

Q Tell me. Explain to me. How?

A I wasn't going to sell 34.11 acres no matter what.

Q What's the difference? You sold sixty?

A Because that's what Gary wanted. I wasn't going to give him what he wanted.

Q You were going to cut Gary out by not selling the property. That's the whole thing.

A No, it isn't.

Q Sure, it is.

A I just didn't want to give him the

64 Deposition of Terry Dobbs at IS4:21-ISS:3/[App. at 001033].

22

money -- not the money. I didn't want to give him the property.

Q You didn't want to give him the option to have the property; right?

A No. I'd have left there a long time ago. Believe me.

Q Because you didn't want to honor your agreement that you had signed. You signed that clear back in '76; right?

A Sure.

Q And so did your husband?

A Yes. 65

As the deposition testimony indicates, Terry and Catherine knew that the April 23, 1976

Option to purchase was not appurtenant to the slaughterhouse property and is valid to this date. In

fact, the formalized dealings with McElroy Coal Company reveal that the argument that the April

23, 1976 Option to purchase was appurtenant to the slaughterhouse property was a defense

fabricated after the fact to cut Gary Dobbs out of his right to the 34.11 acre tract and/or the proceeds

of the coal/waiver transaction. The Waiver, Release and Easement, dated February 15,2008,66 and

executed between Terry and Catherine Dobbs and McElroy Coal Company states:

Warranties and Representations

2. . .. [McElroy] acknowledges its awareness of an Agreement dated April 23, 1976, of record in Marshall County Deed Book 459, Page 357 Between [Terry and Catherine Dobbs] and Gary R. Dobbs. Among other matters, the Agreement purports to create a right in Gary R. Dobbs to purchase the property upon the death of Terry L. Dobbs, or the decision of [Terry and Catherine Dobbs] to "sell,

65 Deposition of Catherine Dobbs at 66:16 - 67:23/[App. at 001088].

66 [App. at 001101-001114].

23

assign or otherwise dispose" of the property. [Terry and Catherine Dobbs] warrant and represent that it is their understanding that the intention of said document was to create a right appurtenant to the 1.115 acre tract of ground conveyed by [Terry and Catherine Dobbs] to Gary R. Dobbs, and subsequently conveyed by Gary R. Dobbs to others. It is the good faith belief of [Terry and Catherine Dobbs] that Gary R. Dobbs has no further right to purchase the subject land. [Terry and Catherine Dobbs] agree, when asked, to testify, under oath to the above understanding as to the intent and purpose of said April 23, 1976 Agreement, and further to cooperate with [McElroy] in the defense of any claim which might be asserted by Gary R. Dobbs, or his assigns, arising out of or related to said April 23, 1976 Agreement. (Emphasis Supplied).

Gary Dobbs had no knowledge about the negotiations and transactions between Terry and

Catherine Dobbs and McElroy and neither party had communicated with Gary Dobbs concerning

the April 23, 1976 Option Agreement. However, despite this, the parties included language in the

Waiver, Release and Easement which obligated Terry and Catherine Dobbs to cooperate in the

defense of anticipated litigation by Gary Dobbs. This language evidences that the Defendants knew

that Gary Dobbs still owned the option to purchase the 34.11 acre tract and intended to utilize a

wait and see approach to determine if they could cut him out of his extremely valuable property

rights.

Based upon the foregoing, it is clear that the intent of the parties to the April 23, 1976

Agreement was to create an option to purchase which was not appurtenant to the slaughterhouse

property. Alternatively, at a minimum, the language "and in the further consideration of the

conveyance by the said Gary R. Dobbs of his undivided interest in the aforesaid described tract or

parcel of land to said parties of the first part,,67 contained in the April 23, 1976 Option Agreement

creates ambiguity as to the intended purpose of the agreement, requiring the court to look at the

67 [App.at 000947].

24

I

circumstances surrounding the execution of the agreement and the subs~quent conduct of the !

parties.

5. The subsequent conduct of Gary Dobbs and subsequent language in the slaughterhouse chain of title are evidence that the April 23, 1976 Option to purchase was in gross and transferable.

Further, in addition to the reasons already proffered, one other piece of evidence unmistakably

establishes that the April 23, 1976 Option to purchase was not intended to be appurtenant to the

slaughterhouse property. Gary Dobbs sold the slaughterhouse property to Billy J. Bledsoe, Jr. and

Cynthia M. Bledsoe on February 16, 1996. In doing so Gary Dobbs reserved a right of ingress and

egress across the slaughterhouse property to the 34.11 acre tract, which was owned by Terry and

Catherine Dobbs at the time. The February 16, 1996 slaughterhouse deed states in pertinent part:

"There is also excepted and reserved a right of ingress, egress and regress for the grantor, his heirs and assigns, over the existing gravel road way running from Cameron Ridge Road, in front of the slaughter house structure, to the property, abutting this 1.150 acres, owned by Terry L. Dobbs."68

There would be no reason for Gary Dobbs to reserve a right of way across the slaughterhouse

property to a tract of land owned by his brother, unless Gary Dobbs had an expectation that he

would have an opportunity to purchase the property in the future by exercising his option to

purchase. This reservation clearly establishes that the option to purchase was "in gross" because

it shows that as far back as February 1996, Gary Dobbs still had an expectation that he would have

an opportunity to purchase the 34.11 acre tract in the future, despite having sold the slaughterhouse

property. It is also important to note that the easement across the slaughterhouse property is clearly

an easement "in gross" as it could not possibly benefit any piece of land owned by Gary Dobbs at

68 [App. at 000170-000172]

25

the time of the conveyance, and yet the easement was reserved to "th9 grantor, his heirs and

assigns." As is the case with the April 23, 1976 Option to purchase, the phrase "his heirs and

assigns" following the words "the grantor" are not included to establish that the right is appurtenant

to any tract but are only meant to establish that the right is not personal and may be assigned by

the holder.

6. The April 23, 1976 Option to purchase is more useful to Gary Dobbs than it would be to a successor in interest to the slaughterhouse property.

If the intent of the parties as to the nature of a servitude cannot be ascertained from the

language used in the instrument, the circumstances surrounding creation of the servitude, and the

purpose for which it was created, then the Restatement (Ihird) of Property: Servitudes call for an

alternate test:

(1) Except where application of the rules stated in § 4.1 leads to a different result, the benefit of a servitude is:

(a) appurtenant to an interest in property if it serves a purpose that would be more useful to a successor to a property interest held by the original beneficiary of the servitude at the time the servitude was created than it would be to the original beneficiary after transfer of that interest to a successor;

(b) in gross if created in a person who held no property that benefited from the servitude, or if it serves a purpose that would be more useful to the original beneficiary than it would be to a successor to an interest in property held by the original beneficiary at the time the servitude was created;

***

(2) In cases of doubt, a benefit should be construed to be appurtenant rather than in gross.69

Although the language of the April 1976 Agreement, the circumstances surrounding creation

of the agreement and the purpose for which the agreement was executed indicate that the option

69 Restatement (Third) of Property: Servitudes §4.S.

26

to purchase the 34.11 acre tract was "in gross;" in the event that the cou~ should decide that it

I

cannot detennine the intent of the parties from those factors, it should stilr find that the April 23,

1976 Option is "in gross" because the right to purchase the 34.11 acre tract serves a purpose which

is more useful to Gary Dobbs than it would be to a successor in interest to the slaughterhouse

property. As previously explained in this brief, the April 23, 1976 Option allowed Gary Dobbs

to keep part of the family homestead, which was part of his inheritance, within his immediate

family. On the other hand, the April 23, 1976 Option was of no actual benefit to successors in

interest to the slaughterhouse property because the 34.11 acre tract was already burdened with an

easement allowing owners of the slaughterhouse property to spread blood and manure and utilize

the pipe to the spring on the tract. In fact, since there is no benefit derived by the owner of the

slaughterhouse property from the option to purchase, the April 23, 1976 Option is not an interest

in the slaughterhouse property. Further, ovmership of the 34.11-acre tract would place an

unnecessary burden on the owner of the slaughterhouse property because he or she would be

subject to paying real property taxes in exchange for access rights which they already possessed.

Additionally, any ambiguity as to the nature of the April 23, 1976 Option Agreement should

be construed against the Dobbs Defendants as Grantors in the subject instrument. 7o

7. The outcome of Cottrill v. Ranson was dependent upon a specific statutory scheme and is not applicable to the case at bar.

70 See Zimmerer v. Romano, 223 W. Va. 769, 779, 679 S.E.2d 601,611 (2009), (,,[w]here 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."); Syl. Pt. 6, 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); and Syl. Pt. 5, Cottrill v. Ranson, 200 W.Va. 691,490 S.E.2d 778 (1997). See also Syl. Pt. 3, West Virginia Dep't a/Highways v. Farmer, 159 W.Va. 823, 226 S.E.2d 717 (1976) ("Where an ambiguity exists in a deed, the language of such deed will be construed most strongly against the grantor.").

27

Defendants' reliance on Cottrill v. Ranson, 200 W.Va. 691, 490 S.E.2d 778 (1997) is

misplaced. The right of repurchase addressed in Cottrill was the creation! of a statutory scheme. i

The Court specifically found that the purpose of W.Va. Code §18-5-7 was to:

"assure rural property owners that, if they convey a portion of their land to be used for school purposes and if school operations on the property later cease, the original grantor of the school property, his heirs or assigns, may repurchase the school property to prevent it from passing into the hands of a stranger and, thereby, protect the parent tract from being damaged.,,7l

The Court then immediately explained:

"In order to accomplish this purpose, we conclude whatever right the original grantor has to repurchase the school property will pass from the original grantor to that grantor's heirs or assigns of the parent tract so that such heirs or assigns may repurchase the school property and protect the parent tract which they own by virtue of the conveyance from the original grantor.,,72

Thus, the Court's decision that the statutory right to repurchase was appurtenant to the parent tract

was driven primarily by the Court's desire to achieve the specific statutory purpose and was not

based upon property law related to servitudes. Further, the court also indicated that the result was

driven by a desire to avoid constitutional concerns, as an opposite result may have unlawfully

discriminated between rural and non-rural property owners under the equal protection clause. 73

Unlike Cottrill, the case at bar does not involve a statutory scheme but involves an option

to purchase created by an agreement between private citizens. As such the character of the option

to purchase as either "in gross" or "appurtenant" is determined by the intent of the parties via the

tests previously enumerated and not by the need to achieve a statutory purpose. Additionally, in

71 Cottrill, 200 W.Va. at 697, 490 S.E.2d at 784.

72 !d.

73 Cottrill, 200 W.Va. at 698, 490 S.E.2d at 785.

28

Cottrill, the statutory right of repurchase clearly was a benefit to the parent tract because the Court

construed the purpose of the repurchase right was to protect rural "horne places,,74 from a scenario

where adjacent lands passed into the hands of a "stranger" and thereby damaged the parent tract.

However, in the case at bar, the slaughterhouse was a commercial property which did not need

protection from "strangers." Further, the right of first refusal did not provide any commercial

protections to the slaughterhouse property because the right to spread blood and manure and use

the spring on the 34.11 acre tract had already been procured in the deeds to said tracts. Finally,

unlike Cottrill, the right of first refusal to purchase the 34.11 acre tract provided no benefit to the

slaughterhouse property and would instead have been nothing more than an unnecessary expense

to the slaughterhouse operation.

D. GARY DOBBS DID NOT TRANSFER HIS OPTION TO PURCHASE THE 34.11 ACRE TRACT WHEN HE SOLD THE SLAUGHTERHOUSE PROPERTY.

Defendants have argued that Gary Dobbs transferred his option to purchase the 34.11 acre tract

when he sold the slaughterhouse property to Billy J. Bledsoe, Jr. and Cynthia M. Bledsoe on

February 16, 1996. However, the option to purchase was not transferred in the Bledsoe deed

because: (1) for the reasons previously mentioned, the option to purchase was not appurtenant to

the slaughterhouse tract and/or (2) the April 23, 1976 Option to purchase was not a "right," "title"

or "interest" in the slaughterhouse tract because it provided no additional benefit to said tract.

Further, even if the option to purchase was appurtenant to and/or an interest in the slaughterhouse

tract, the intent of the parties expressed in the February 16, 1996 slaughterhouse deed was that the

74 Cottrill, 200 W.Va. at 697, 490 S.E.2d at 784 quoting Stevens v. Raleigh Board of Education, 163 W.Va. 434, 440, 257 S.E.2d 175, 179 (1979) nT]he thrust of the statute was a protection of farm interests. The repurchase privilege was designed to protect the interests associated with rural estates; that is, the preservation of "home places" and operative agricultural units. The statute was not intended to preserve unto future generations a windfall profit realized because of adjacent development.")

29

I

option to purchase was excepted and/or reserved along with Gary's reserv ali on of a ri ght of ingress

and egress across the property to the 34.11 acre tract.

E. GARY DOBBS' OPTION TO PURCHASE THE 34.11 ACRE TRACT WAS TRIGGERED WHEN DEFENDANTS TERRY AND CATHERINE DOBBS DECIDED TO SELL THE SUBJECT TRACT BY EXECUTING THE AUGUST 31, 2007 MCELROY OPTION AGREEMENT.

Pursuant to the terms of the April 23, 1976 Agreement, Gary Dobbs had an option to

purchase the 34.11 acre tract if Terry and Catherine Dobbs "decided to sell, assign or otherwise

dispose of' the subject property.75 On August 31, 2007 Terry and Catherine Dobbs signed an

agreement granting McElroy the exclusive right or option to purchase the 34.11 acre tract for a

time period of 90 days.76 The execution of the August 31, 2007 McElroy Option was a decision

to sell the 34.11 acre tract which triggered Gary Dobbs' option to purchase created by the April

23, 1976 Agreement.

Defendants have argued that execution of the McElroy Option agreement did not trigger

Gary Dobb's option to purchase because, pursuant to Section 3 of the option agreement, titled

DUE DILLIGENCE AND CLOSING, Terry and Catherine Dobbs could satisfY their obligations

under the contract by delivering McElroy a waiver ofliability with respect to its mining operations

on the 34.11 acre tract. 77 However, this argument fails for at least two reasons.

First, there was no instrument of record that precluded Terry and Catherine Dobbs from

conveying title of the 34.11 acre tract to McElroy. While Gary Dobbs does own an option to

75 [App. at 000946-000948].

76 [App. at 000229-000232].

77 [App. at 000229-000230].

30

purchase the 34.11 acre tract, this is not an absolute bar which would preclupe Terry and Catherine

Dobbs from conveying the tract to McElroy. It is true that in order to complete the conveyance to

McElroy the Dobbs Defendants would have to first satisfy their obligations under the April 23,

1976 Agreement by providing Gary Dobbs \vritten notice via certified mail of his option to

purchase the property at the set price within thirty (30) days. However, the exercise of the option

to purchase the 34.11 acres was completely within Gary Dobbs' discretion and required an

affirmative act by him to exercise that right. Since ownership of the property would not transfer

automatically upon Terry and Catherine Dobbs' decision to sell and since Gary Dobbs was under

no legal obligation to exercise the option, it is possible the option to purchase would not have been

exercised. In that scenario, after having fulfilled their contractual obligations to Gary Dobbs, Terry

and Catherine Dobbs could have conveyed title to the 34.11 acre tract to McElroy.

Second, the decision to deliver McElroy a waiver of liability associated with McElroy's

mining operations in lieu of conveying title to 34.11 acre tract was not within the control of Terry

and Catherine Dobbs and was to be made only by McElroy. In fact, the decision to use a waiver

of liability instead of a deed conveying title could only be performed if permitted according to

McElroy's "reasonable judgment."78 Based upon the language of the option agreement, if

McElroy would have insisted that Terry and Catherine Dobbs convey title to the 34.11 acre tract

via deed, they would have been legally obligated to do so. Therefore, since the contingency of

providing a waiver of liability for mining operations in lieu of conveying title to the 34.11 acre

tract, was not within the control of Terry and Catherine Dobbs; and since McElroy could have

compelled Terry and Catherine Dobbs to convey title to the subject property via deed, the

78 [App. at 000230].

31

execution of the August 31, 2007 McElroy option agreement constitutJ a decision to sell the

34.11 acre tract triggering Gary Dobbs' option to purchase under the April 23, 1976 Agreement.

F. GARY DOBBS' OPTION TO PURCHASE THE 34.11 ACRE TRACT WAS TRIGGERED WHEN DEFENDANTS TERRY AND CATHERINE DOBBS DECIDED TO ASSIGN OR OTHERWISE DISPOSE OF THE SUBJECT TRACT BY EXECUTING THE MCELROY FEBRUARY 15, 2008 WAIVER, RELEASE AND EASEMENT.

The option to purchase the 34.11 acre tract created under the April 23, 1976 Agreement

was also triggered if Terry and Catherine Dobbs "decide to ... assign or otherwise dispose of the

aforementioned tract or parcel ofland. ,,79 According to the Merriam-Webster dictionary, the legal

definition of the phrase "dispose of' means "to give control or ownership of (land, possessions,

etc.) to someone."so While Terry and Catherine Dobbs may have not technically transferred

ownership of the 34.11 acre tract to McElroy, they certainly gave McElroy control over the

property when they signed the Waiver, Release and Easement dated February 15,2008.

The waiver, release and easement gave McElroy unlimited discretion to use the entirety of

the 34.11 acre tract as the coal company saw fit for its mining operations, which was tantamount

to ownership of the property. The following are excerpts from the Waiver, Release and Easement

which demonstrate that the assignment or grant of control given to McElroy with respect to the

34.11 acre tract was so broad and extensive that there was no difference between the activities

which McElroy was permitted to perform on the property as compared to those of which the

technical owners of the property could perform:

WAIVER, RELEASE AND EASEMENT

79 [App at. 000948].

80 "Dispose of." Merriam-Webster.com. Merriam-Webster, n.d. Web. 21 July 2016.

32

*** i

WHEREAS, [McElroy] intends to conduct and undergrolmd mmmg operation beneath said tract in the future, pursuant to its existing mining rights and applicable law, and shall enter upon the surface of the property as deemed necessary in its sole discretion to conduct activities related to its underground mining operations, all of which may cause damage to surface lands, water, and improvements;

*** WHEREAS, in further consideration of said sum, [Terry and Catherine Dobbs]

agree to grant [McElroy] a general easement, permitting unlimited access to the surface of said tract, as necessary in [McElroy's] discretion, in order to conduct activities related to its mining operations: 81

*** Grant of Easment

4. [Terry and Catherine Dobbs] further hereby grant to [McElroy] an Easement and Right-of-way to enter upon said lands, on one or more occasions in the discretion of [McElroy], and to travel over and across said lands, and conduct upon said lands surface activities deemed necessary in [McElroy's] discretion in relation to its underground mining operations, including, but not limited to, drilling, excavating, plugging active or abandon gas wells, surveying, installations of entries and shafts, and any and all other activities deemed necessary by [McElroy]. 82

EXHIBIT B

EASEMENT AND RIGHT-OF-WAY

*** This Easement and Right-of-Way includes the right to enter upon said lands, and to

travel over and across said lands, and conduct upon said lands surface activities deemed necessary in [McElroy's] discretions in relation to its underground mining operations, including, but not limited to drilling; excavating; plugging active or abandon gas wells; surveying; installations of entries and shafts; and any and all other activities deemed necessary by [McElroy]. Said entries and activities upon the surface shall be made without liability whatsoever to [Terry and Catherine Dobbs] for any damage to lands and improvements.

81 [App. at 000234].

82 [App. at 000236].

33

[McElroy's] rights hereunder shall include the cutting and removal of any trees, vegetation, and removal of any improvements, which may interrere with its activities hereunder. [McElroy] may make use of existing roads, or develop and construct new roads, for access to any point upon the subject land, or other lands, without liability for any interference with [Terry and Catherine Dobbs'] common use of the surface of said lands. 83

The Waiver, Release and Easement demonstrates that McElroy acquired rights to control

the 34.11 acre tract which were so extensive that they were in fact equivalent to ownership of the

property. Further, although Terry and Catherine Dobbs retained some rights to utilize the surface

of the 34.11 acre tract, these rights were subordinate to those of McElroy in that the Waiver,

Release and Easement also contained a "No Interference" clause which prohibited Terry and

Catherine Dobbs from interfering in any way with McElroy's mining operations.84

Additionally, there is no greater indicia of control or ownership over property than the right

to damage or destroy said property without recourse. Through the Waiver, Release and Easement

McElroy obtained a waiver and release of any and all claims arising from or as a proximate result

of future mining operations conducted by McElroy with respect to the 34.11 acre tract. 85 Because

McElroy had the right to damage and/or destroy any portion of the property without recourse, the

execution of the February 15, 2008 Waiver, Release and Easement constituted an assignment or

disposal of the 34.11 Acre tract which triggered Gary Dobbs' option to purchase.

Further, the phrase "dispose of' is a term which has been used in a legal sense "to reach

those cases where persons by some artifice or indirection attempt to cover up a sale, and thus evade

83 [App. at 000242].

84 [App. at 000236].

85 [App. at 000234-000235].

34

the penalties ofthe law."86 Such was the situation in an early Colorado case interpreting the term

I "dispose of' in the context of a statute regulating the sale of liquor:

"To 'dispose of liquor in any manner'" might, unqualified by anything else, mean the giving of it away; but in a statute providing that any persons who shall barter, sell, or dispose of in any manner any spirituous liquor, without first having obtained a license, shall be fined, it meant to part with it for some consideration, or with some motive or gain, and did not prohibit giving it away. It was intended to reach those cases where persons by some artifice or indirection attempted to cover up a sale, and thus evade the penalties of the law. Litch v. People ex ref. Town ojSterling, 75 Pac. 1079,1080,19 Colo. App. 421 (1904) (citing Woodv. Territory, 1 Or. 223).,,87

Although the present case does not involve the statutory regulation of the sale of alcohol,

the concept espoused in the Litch case with respect to the term "dispose of' could not have a more

appropriate application than in the case at bar. Through discovery, Plaintiff has learned the details

of the negotiations between McElroy and Terry and Catherine Dobbs which stretch back into

September of 2006. The documents produced create a disturbing picture whereby Defendants had



the concoction of the use of a Waiver, Release and Easement instead of an outright conveyance of

the 34.11 acre tract. It is apparent that the Waiver, Release and Easement which was executed was

an artifice or indirection attempted to cover up what was in reality a sale of the 34.11 acre tract.

For the reasons cited, the execution of the Waiver, Release and Easement was an assignment or

disposal ofthe 34.11 acre tract triggering Gary Dobbs' April 23, 1976 Option to purchase.

G. THE EXECUTION OF THE WAIVER, RELEASE AND EASEMENT WAS A SALE OR ASSIGNMENT OF THE SUPPORT ESTATE WHICH TRIGGERED THE APRIL 23, 1976 OPTION TO PURCHASE.

86 Judicial and Statutory Definitions of Words and Phrases (1904), Volume 2 at page 81.

87 Jd.

35

I

[ i I i

Lyle Dobbs, father of Gary and Terry Dobbs, acquired the right of subjacent support along

with his purchase of the 34.11 acre tract on September 17, 1956. In particular, the deed conveying

the 34.11 acre tract to Lyle Dobbs stated as follows:

The parties of the first part specifically reserve and retain for themselves, their heirs, executors, administrators, personal representatives and assigns, all the oil, gas and mineral in the real property hereinbefore described, together with the right of ingress and egress on, across and through the surface of said described real property for the purpose of exploring for and removing such mineral, oil and gas and together with the right to construct walls, mines, oil and gas pipelines for any and all works in order to explore said described lands for oil, gas and minerals and to remove the same, but due regard shall always be hadfor the rights of the owners of the suiface of the land and as little injury to such suiface shall be done as is possible.88

When Defendants Terry and Catherine Dobbs executed the McElroy Waiver, Release and

Easement they effected a sale or assignment of the support estate with respect to the 34.11 acre

tract thus triggering Gary Dobbs' option under the April 23, 1976 Agreement. Although the issue

has not been specifically addressed by the West Virginia Supreme Court of Appeals at least one

other jurisdiction, also rich in mining tradition, has recognized the "support estate" as the "third

estate" in land. 89 This court should adopt the position of the Pennsylvania Supreme Court and

recognize the right of subjacent support as an estate in land as is proper to clarify and protect this

extremely valuable right which affects the lives of a vast multitude of the citizemy of this state.

88 [App. at 000134-000135] (Emphasis supplied).

89 See Smith v. Glen Alden Coal Co., 347 Pa. 290, 304, 32 A.2d 227, 234-35 (1943) ("It is well recognized in Pennsylvania that there may be three estates in land, namely, coal, surface, and right of support, so that one person may own the coal, another the surface, and the third the right of support .... This servitude of support is an estate in land, sometimes referred to in this commonwealth as 'the third estate'.") (internal citations omitted); See also In re Gordon, 317 Pa. 161, 168, 176 A. 494, 497 (1935); Charnetski v. Miner's Mills Coal Mining Co., 270 Pa. 459, 463, 113 A. 683, 684 (1921); and Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158,67 L.Ed. 322,28 A.L.R. 1321 (1922)

36

I Defendants rely upon Faith United Methodist Church & Cemetery oyrerra Alta v. Morgan.

I '

231 W. Va. 423, 745 S.E.2d 461 (2013) for their contention that the right of subjacent support is

not an estate in land; however, that case did not deal with subjacent support. Rather, the holding

in Faith United Methodist Church was that the tenn "surface" had a definite meaning when used

in an instrument of conveyance, namely "the exposed area of land, improvements on the land, and

any part of the underground actually used by a surface owner-as an adjunct to surface use (for

example, medium for the roots of growing plants, groundwater, water wells, roads, basements, or

construction footings)."9o In arriving at this definition the court did consider the definition of

"surface" contained in the 1990 Model Surface Use and Mineral Development Accommodation

Act but then specifically rejected "subjacent and lateral support for land and structures" as part of

the Court's definition.91 In fact the intentional omission of the "subjacent and lateral support"

language indicates that the right of subjacent support is not merely an incident to the surface estate,

but is itself a separate estate in land.

H. THE CIRCUIT COURT PRO PERL Y DENIED SUMMARY JUDGMENT WITH RESPECT TO PLAINTIFF'S SLANDER OF TITLE CLAIM.

Plaintiff Gary Dobbs has demonstrated that he has a valid option to purchase the 34.11 acre

tract of land which was triggered by one or more agreements entered into between the Defendants.

Further, the option to purchase the 34.11 acre tract, which has been breached by the Dobbs

Defendants is enforceable by specific perfonnance92 and therefore, Plaintiff is entitled to a deed

90 Syl. Pt. 2, Faith United Methodist Church & Cemetery of Terra Alta v. Morgan, 231 W. Va. 423, 745 S.E.2d 461, 463 (2013).

91 Faith United Methodist Church & Cemetery of Terra Alta v. Morgan, 231 W. Va. 423, 442-43, 745 S.E.2d 461, 480-81 (2013).

92 Syl. Pt. 2., Pollock v. Brookover, 60 W.Va. 75, 53 S.E. 795 (1906).

37

I

conveying him title to the 34.11 acre tract. However, McElroy with specjfiC knowledge of Gary

Dobbs' April 23, 1976 Option to purchase has placed the Waiver, Relehse and Easement93 of

Record in the Marshall County Clerk's office which purports to give Defendant McElroy nearly

unlimited rights with respect to mining operations on the 34.11 acre tract which have priority over

all other rights to use the surface and which in actuality are tantamount to ownership of the

property. The recordation of the Waiver, Release and Easement is the publication of a false

statement with respect to current and future ownership rights of the 34.11 acre tract. Further,

Plaintiff has shown through a series of communications between representatives of the Defendants

that the use and recordation of the Waiver, Release and Easement with respect to the 34.11 acre

tract was a malicious act performed with specific knowledge of and intent to \vyongly deprive Gary

Dobbs of his valuable property rights. Gary Dobbs has been damaged in that it appears of record

that he has lost the right to subjacent support of the property and that it appears to the public,

including potential purchasers, that any rights to the use of the surface of the property are

subordinate to that of the Coal Company.

1. THE CIRCUIT COURT PROPERLY DENIED SUMMARY JUDGMENT WITH RESPECT TO PLAINTIFF'S TORTIOUS INTERFERENCE CLAIM.

Plaintiff Gary Dobbs has demonstrated that he has a valid contract providing him with an

option to purchase the subject 34.11 acre tract. Plaintiff has further demonstrated that McElroy

had specific knowledge of Gary Dobbs' option to purchase the 34.11 acre tract and took elaborate


the concoction of the use of a Waiver, Release and Easement instead of an outright conveyance of

93 [App. at 000234-000237].

38

the 34.11 acre tract. Plaintiff has also demonstrated that the Waiver, Rele,ase and Easement was

an artifice intended to cover up what was in reality a sale of the 34.11 aCre tract. Specifically,

Gary Dobbs has set forth evidence that Defendant McElroy with specific knowledge of Gary's

contractual rights to purchase the 34.11 acre tract assisted, encouraged and participated in conduct

by Terry and Catherine Dobbs which amounted to a breach of those contractual rights and slander

of title. Additionally, Gary Dobbs has provided evidence that this interference caused him

substantial harm including the loss of the opportunity to sell his mining and/or subsidence rights

which Defendant McElroy themselves paid substantial monies to acquire.

1. THE CIRCUIT COURT PROPERLY DENIED SUMMARY JUDGMENT WITH RESPECT TO PLAINTIFF'S CIVIL CONSPIRACY CLAIM.

Plaintiff has set forth correspondence and contractual documents between Defendants

and/or their representatives/agents which create a disturbing picture whereby Defendants had


measures to intentionally and maliciously interfere with and deprive him of his valuable

contractual and property rights through the concoction of the use of a Waiver, Release and

Easement instead of an outright conveyance of the 34.11 acre tract. It is apparent that the Waiver,

Release and Easement was executed as an artifice or indirection to cover up what was in reality a

sale of the subject property. These acts were clearly in violation of Plaintiff s civil rights, as his

April 23, 1976 Option to purchase had been triggered when Defendants executed the August 31,

2007 McElroy Option and/or the Waiver, Release and Easement dated February 15,2008. Further,

as previously demonstrated, in furtherance of the conspiracy Defendants engaged in a number of

unlawful and/or illegal acts including breach of contract, slander of title, and intentional

interference with contractual relations.

39

K. THE CIRCUIT COURT PROPERLY DENIED SUMMARY JUDGMENT WITH RESPECT TO PLAINTIFF'S WRONGFUL POSSESSION CrlAIM.

The Circuit Court properly denied Defendants' summary judgment motion with respect to

Plaintiffs Wrongful Possession claim because Plaintiff has demonstrated that he is still the holder

of a valid option to purchase the subject 34.11 acre tract which was triggered by the execution of

the August 31, 2007 McElroy option agreement and/or February 15, 2008 Waiver, Release and

Easement by Defendants Terry and Catherine Dobbs.

VI. CONCLUSION

WHEREFORE, Respondent, Gary Dobbs, respectfully requests that this Court affirm the

Order of the Circuit Court of Marshall County awarding summary judgment to Respondent Gary

R. Dobbs and for such other relief which the Court deems just and proper.

Respectfully submitted,

Gary R. Dobbs., Respondent

By >?~~~ Robert P. Fit 0 1212)

40

Robert J. Fitzsimmons (9656) FITZSIMMONS LAW FIRM PLLC 1609 Warwood Avenue Wheeling, WV 26003 Telephone: (304) 277-1700 Fax: (304) 277-1705

Michael 1. Burkey (4847) Linda Burkey (5052) BURKEY & BURKEY 2058 Irish Ridge Road Cameron, WV 26033 Telephone: (304) 845-1540 Fax: (304) 845-1540

CERTIFICATE OF SERVICE

Service of the foregoing RESPONDENT'S BRIEF was had upon the Petitioners,

McElroy Coal Company and Terry L. Dobbs and Catherine Dobbs, by mailing a true copy thereof

by First Class United States Mail, postage prepaid, this 29th day of June, 2018, to the following:

{OOl721S2-1}

Ancil G. Ramey, Esq. Stacey Richards-Minigh, Esq.

Steptoe & Johnson, PLLC Post Office Box 2195

Huntington, WV 25722 (Counsellor Petitioner McElroy Coal Company)

William D. Wilmoth, Esq. Steptoe & Johnson PLLC

Post Office Box 751 Wheeling, WV 26003

(Counsellor Petitioner McElroy Coal Company)

H. Brann Altmeyer, Esq. Phillips, Gardill, Kaiser & Altmeyer PLLC

61 14th Street Wheeling, WV 26003

(Counsellor Petitioner McElroy Coal Company)

Eric M. Gordon, Esq. Berry, Kessler, Crutchfield, Taylor & Gordon

514 Seventh Street Moundsville, WV 26041

(Counsellor Petitioners Terry L. Dobbs and Catherine Dobbs)

in the supreme court of appeals of west i ~l20~ r~1 ...€¦ · uu nu i ht!viuvti from file file...

Documents