STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
November 6, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
Terry Amaker and Sonya Amaker, OF WEST VIRGINIA
Defendants Below, Petitioners
vs) No. 15-0203 (Berkeley County 13-C-797)
Hammond’s Mill Homeowners Association, Inc.,
Plaintiff Below, Respondent
MEMORANDUM DECISION
Petitioners Terry Amaker and Sonya Amaker, pro se, appeal the June 29, 2015, amended
final order of the Circuit Court of Berkeley County granting summary judgment to Respondent
Hammond’s Mill Homeowners Association, Inc. The circuit court ruled that (1) petitioners must
remove a fence from respondent’s property; (2) if petitioners do not remove the fence, respondent
may remove it and assess costs against petitioners; (3) respondent may also remove the
landscaping associated with the fence; (4) petitioners are enjoined from erecting a new fence on
respondent’s property; (5) petitioners must reimburse $175 to respondent for the survey that
determined the property lines; and (6) petitioners must reimburse respondent $33,887.03 in
attorney’s fees.1 Respondent, by counsel Kenneth J. Barton, Jr., Austin M. Hovermale, and Amber
M. Moore, filed a response.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
1
The original final order was entered on February 17, 2015, and contained a clerical error
because it erroneously recited “Lot 48” instead of the correct “Lot 92.” On May 14, 2015, the
circuit court requested that this Court remand this case for the limited purpose of entering an
amended order correcting the error. This Court granted the circuit court’s request and remanded
the case for the entry of the June 29, 2015, amended final order by an order entered on May 27,
2015. Because the orders are otherwise identical, we refer only to the amended final order except
where necessary. See discussion infra.
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reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
Petitioners, husband and wife, own Lot 92 within the Hammond’s Mill subdivision in
Berkeley County, West Virginia. Petitioners and respondent, the subdivision’s homeowners
association, became involved in a dispute as to whether the fence petitioners erected in their
backyard encroached on a common area, which belonged to respondent.
Petitioners retained an attorney who wrote respondent on April 24, 2013, demanding that
respondent not engage in self-help and remove the fence. After receiving the April 24, 2013 letter,
respondent retained an attorney who subsequently wrote petitioners on August 20, 2013,
explaining that the fence was in violation of the subdivision’s restrictive covenants, requesting that
petitioners remove the fence from respondent’s property, and advising that if the fence was not
removed, respondent would file an action to enforce the restrictive covenants and that any such
action would include a claim for reimbursement of attorney’s fees and costs pursuant to the
restrictive covenants.2 Petitioners did not respond to the August 20, 2013, letter or remove the
fence.
Respondent filed the instant action against petitioners on November 1, 2013, in the Circuit
Court of Berkeley County. Respondent subsequently filed a motion for summary judgment, which
the circuit court granted in its amended final order. In an earlier order, entered on December 1,
2014, the circuit court found that mediation had narrowed the issues in controversy:
[Petitioners] admitted to the Court that their fence is built on [respondent’s] land
and represented to the Court that [petitioners] will bear the full cost to remove the
fence from [respondent’s] land. Therefore, the remaining issue is whether
[respondent] is entitled to be reimbursed for costs and fees incurred in enforcing the
Restrictive Covenants against [petitioners].
On January 8, 2015, the circuit court held an evidentiary hearing on respondent’s claim to be
reimbursed for attorney’s fees and costs. Thereafter, the circuit court entered its amended final
order granting respondent’s motion for summary judgment, ruling that: (1) petitioners must
remove their fence from respondent’s property; (2) if petitioners do not remove the fence,
respondent may remove it and assess costs against petitioners; (3) respondent may also remove the
landscaping associated with the fence; (4) petitioners are enjoined from erecting a new fence on
respondent’s property; (5) petitioners must reimburse $175 to respondent for the survey that
determined the property lines; and (6) petitioners must reimburse respondent $33,887.03 in
attorney’s fees.
Petitioners now appeal the circuit court’s June 29, 2015, amended final order granting
2
The April 24, 2013, letter requested direct communication with petitioners rather than
their attorney.
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summary judgment to respondent.3 In Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189, 190,
451 S.E.2d 755, 756 (1994), this Court held that “[a] circuit court’s entry of summary judgment is
reviewed de novo.” Pursuant to Rule 56(c) of the West Virginia Rules of Civil Procedure,
summary judgment shall be granted provided that “there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Furthermore, “[s]ummary
judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to
find for the nonmoving party[.]” Syl. Pt. 4, in part, Painter, 192 W.Va. at 190, 451 S.E.2d at 756.
We find that the circuit court’s amended final order adequately resolves all issues raised by
petitioners except for the three issues that we now address. First, petitioners note that the original
final order identified the wrong lot as being owned by them. We determine that this issue was
resolved by the entry of the amended final order which corrected that clerical error. While the
circuit court entered the amended final order after petitioners had appealed this matter, our May
27, 2015, order allowed the entry of a corrected order.
Second, petitioners asserted that their counsel did not provide them with effective
assistance. Respondent counters that, in civil cases, there is no constitutional guarantee of effective
assistance of counsel. See Franklin D. Cleckley, Robin Jean Davis, and Louis J. Palmer, Jr.,
Litigation Handbook on West Virginia Rules of Civil Procedure, § 59(a), at 1279 (4th ed. 2012) (“A
civil litigant does not have a constitutional or statutory right of effective assistance of counsel in a
civil case.”). We agree with respondent and find that this issue lacks merit.
Third, petitioners assert that respondent proceeded against them because of racial animus
based on the fact that, according to petitioners, respondent filed a similar action against another
minority family.4 We note that each case must be decided on its own facts and petitioners do not
dispute the circuit court’s finding that their fence was on respondent’s property. Therefore, we find
that this issue lacks merit.
Having reviewed the circuit court’s June 29, 2015, amended final order, we hereby adopt
and incorporate the circuit court’s well-reasoned findings and conclusions as to all other issues
raised by petitioners in this appeal. The Clerk is directed to attach a copy of the circuit court’s
order to this memorandum decision. We conclude that the circuit court did not err in granting
summary judgment to respondent.
3
The circuit court entered a stay of its final order on condition that petitioners post a bond
for the full judgment amount within ten days. Petitioners did not post such a bond; accordingly, the
stay expired, by its own terms, after ten days. By a letter received on August 5, 2015, petitioners
informed this Court that respondent had the fence and associated landscaping removed from its
property on July 30, 2015.
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Petitioners indicate that they are African-American.
3
For the foregoing reasons, we affirm the June 29, 2015, amended final order granting
summary judgment to respondent.
Affirmed.
ISSUED: November 6, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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