High court rules against Putnam couple in retention pond case

By Jessica M. Karmasek | Mar 14, 2014

CHARLESTON -- The West Virginia Supreme Court of Appeals last week ruled that a Putnam County couple didn’t have enough evidence in a lawsuit they filed over a retention pond they claim encroached their property.

The state’s high court affirmed Putnam Circuit Judge Phillip Stowers’ January 2013 decision.

In his final order, the judge granted summary judgment in favor of defendants Sahley Realty Company Inc., Patrick L. Sterner and wife Melinda R. Sterner, and WHR Group Inc. Stowers dismissed the action as to all counts, counterclaims, cross-claims and third-party claims.

However, plaintiffs David W. Dickens and his wife, Deborah A. Dickens, asserted there are disputed material facts and therefore the lower court erred in granting summary judgment.

The Supreme Court, in its per curiam opinion, agreed with the judge and sided with the defendants, saying the couple offered “mere conjecture in the form of neighborhood rumors and unauthenticated (homeowners association) meeting minutes.”

In 2005, Sahley sold Lot 329 to Terlin Enterprise LLC, which subsequently constructed a house on the property. Terlin sold the property to the Sterners on May 19, 2006.

About a year later, the Sterners were forced to sell their house because of Patrick Sterner’s job.

As an employee benefit, Sterner’s new employer contracted with WHR, an employee relocation company, to handle the sale of the house.

On May 6, 2008, the plaintiffs entered into a contract to purchase the property. They performed their own personal inspection and paid an independent inspector to evaluate the property.

In September that year, the couple closed on the house and signed a release agreement.

They did not discuss the retention pond located adjacent to the property with the Sterners or WHR before purchasing the house.

However, they stated in July 2010 they discovered -- through conversations with neighbors -- there was a problem with the eastern wall of the pond. The Dickenses referred to minutes from a Nov. 3, 2005 HOA meeting, which stated, in part, “concern about the pit in back caving in” and to minutes from the HOA’s Nov. 20, 2006 meeting during which concerns regarding “pits” and “steps to take regarding the pit and slippage” were discussed.

The couple allegedly had the pond surveyed in July 2010, and the report allegedly showed the pond had encroached on their property.

A year later, in August 2011, the Dickenses sued Sahley, WHR and the Sterners for claims of fraud, constructive fraud, negligence and breach of implied contract.

They alleged that a “slip” occurred on the east side of the pond prior to their purchase of the house, allowing it to cross the common boundary line onto their property.

In his Jan. 8, 2013 order, Stowers found that the couple had set forth no evidence of their damages and “no evidence of current instability in the pond … which remains today as it was at the time of the conveyance” to the couple.

The Supreme Court, in its 18-page ruling, agreed, saying the defendants “clearly demonstrated the absence of evidence” supporting the plaintiffs’ case, notwithstanding the circuit court’s decision to allow them time to gather supportive evidence.

“The petitioners only offered conjecture and speculation, which left the circuit court with their phantom survey, unauthenticated and imprecise HOA meeting minutes, and unsworn rumors and speculations of certain neighbors,” the justices wrote.

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