CHARLESTON – The West Virginia Supreme Court of Appeals sided with a late Berkeley County property owner who filed a lawsuit nearly a decade ago over stormwater draining onto his property.
The Supreme Court affirmed Berkeley Circuit Court's judgment where it found that a judgment order entered in prior litigation in which petitioner Banbury Holdings was a party and recorded in the Office of the Clerk of the County Commission of Berkeley County ran with the land and was binding upon Banbury and all its successors in title.
Banbury argued in its appeal that the injunction proceeding was void "ab initio" and count not be enforced against it.
"At oral argument, (respondent Robert W.) May urged this court to apply estoppel to Banbury Holdings LLC’s position on appeal and directed this court to Syllabus Point 6 of Bettman v. Harness..." Justice Tim Armstead wrote in the majority opinion.
The Supreme Court disagreed with May’s contention that Bettman controls the estoppel doctrine applicable in this matter, but that while it disagreed with that, the court nonetheless invoke judicial estoppel, sua sponte, as "judicial estoppel is an equitable doctrine invoked by a court at its discretion."
Mark-Banbury LLC acquired property in Berkeley County in 2005 and granted a credit line deed of trust on The Lakes to Mercantile Mortgage Corp. May owns a piece of property across from The Lakes and without permission, Mark-Banbury LLC entered May's property and constructed a stormwater management facility and began draining water across May's land, according to the Supreme Court opinion.
May brought an injunction proceeding against Mark-Banbury LLC in December 2010 and the Circuit Court found in favor of May in 2013. Almost immediately, Banbury declared a default and proceeded to a trustee's sale of The Lakes in 2014. May filed an emergency motion in the injunction proceeding when he was put on notice of the sale and Banbury Holdings argued that the injunction should be dissolved.
The Circuit Court found that May's motion was premature and denied it. Banbury filed a motion seeking dissolution or modification of the judgment order in June 2017.
"After the Circuit Court decided to 'neither extend nor dissolve the injunction,' Banbury Holdings LLC purchased The Lakes at the foreclosure sale," Armstead wrote. "The Circuit Court also found that Banbury Holdings LLC’s notice of the recorded judgment order, 'of which it voluntarily inserted itself in the litigation of, causes it to be subject to the injunctive relief found in said [j]udgment [o]rder...' It is from entry of this order that Banbury Holdings LLC seeks relief from this court."
Armstead wrote that the Supreme Court found that all four of the factors in West Virginia Dept. of Transportation, Div. of Highways v. Robertson regarding judicial estoppel were satisfied and that, because of that, Banbury Holdings is "judicially estopped from asserting conflicting positions in this collateral proceeding."
The ruling states that prior to oral argument, May's counsel notified the court that May died in October. When the opinion was issued, no motion had been filed to substitute parties.
West Virginia Supreme Court of Appeals case number 18-0550
