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Jul. 4, 2009 | West Virginia's Legal Journal
 
NEWS

Pro se plaintiff convinces Supreme Court

2/15/2007 10:06 AM
By Steve Korris -Statehouse Bureau

CHARLESTON - Thomas Auxier of Indore represented himself before the West Virginia Supreme Court of Appeals and did better than some lawyers do.

Auxier won his case, convincing the Justices to erase a $300 contempt order.

Justice Joseph Albright said, "I see absolutely no basis on which this order can stand."

That did not satisfy Auxier. He still wants the Justices to decide where his property ends and a public road begins.

Auxier and neighbor Billy Truman have feuded for years over a fence Auxier put up near his home at the end of Payne Hollow Road.

Truman claimed the fence was on public right of way.

Truman sued Auxier in Clay Circuit Court, seeking an order to remove the fence.

Truman obtained the order. When Auxier did not immediately carry it out, Truman obtained a contempt order against Auxier with a $300 penalty.

Auxier then took down the fence.

He petitioned the Supreme Court of Appeals to overturn the contempt order, arguing that he received no notice of his contempt hearing.

When he got to the Court, however, he worried more about the right of way.

He began by tracing the road's history through deeds back to 1905.

Albright asked if the court ordered the fence down. Auxier said yes.

Chief Justice Robin Davis asked what happened next.

Auxier said he took it down.

Albright asked if he laid the posts at the side of the road. Auxier said yes.

Albright asked if he was there on the contempt order.

Auxier said no. He said he was there about 20 feet of right of way.

He said the highway department brought nothing against him.

Davis asked Truman's attorney, Jerome Novobilski, to respond to Auxier's argument.

Novobilski said, "I am perplexed. I am at a loss to respond to it because I don't understand it."

He said Auxier laid posts and wire on the traveled part of the road.

On rebuttal Auxier told the Justices, "It amazes me that you took a $300 case."

Albright said, "That is a tribute to your rights as a citizen."

Auxier said, "Do I have a 20 foot public right of way or do I not?"

The Justices will answer in a written opinion.

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