David Earl Bowyer v. Deborah L. Wyckoff

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2017 Term

FILED

January 26, 2017

No. 15-1139 released at 3:00 p.m.
RORY L. PERRY, II CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

DAVID EARL BOWYER,

Defendant Below, Petitioner

DEBORAH L. WYCKOFF, ET AL.,

Plaintiffs Below, Respondents

Appeal from the Circuit Court of Doddridge County

Honorable Timothy L. Sweeney, Judge

Civil Action No. 10-C-40

AFFIRMED

Submitted: January 10, 2017
Filed: January 26, 2017

Scott L. Summers John M. Hedges
Summers Law Office, PLLC Stephanie L. Mascella
Charleston, West Virginia Hedges & Lyons, PLLC
Timothy J. O’Neill, III Morgantown, West Virginia
Buckhannon, West Virginia Attorneys for the Respondents,
Attorneys for the Petitioner George J. Buff, III; J. Charles Buff; and
Estate of Helen Buff
B. Scott Wolfe Edmund L. Wagoner
Harrisville, West Virginia Goddard & Wagoner
Attorney for the Respondent, Clarksburg, West Virginia
Deborah Lynn Wyckoff Attorney for the Respondents,
Janice A. Hurst and
Ronald L. Cumberledge

Cynthia J. T. Loomis Paul V. Morrison, II
Loomis Law Office Windom Law Offices
Salem, West Virginia Harrisville, West Virginia
Attorney for the Respondents, Attorney for the Respondents,
Alex Semenik and Erin Brown Maribel Pontious, Nelson Swiger, and
The Seventh Day Baptist Memorial
Fund, Inc.

E. Ryan Kennedy
Robinson & McElwee
Clarksburg, West Virginia
Attorney for the Respondents,
Patricia Ann Swiger, Ralph Dewayne Swiger,
Thomas Swiger, and Joyce Swiger

JUSTICE DAVIS delivered the Opinion of the Court.
SYLLABUS BY THE COURT

1. “Under W. Va. Code, 37-4-3, when partition in kind ‘cannot be

conveniently made, the entire subject may be allotted to any party or parties who will accept

it, and pay therefor to the other party or parties such sum of money as his or their interest may

entitle him or them to. . . .’” Syllabus point 2, Smith v. Smith, 180 W. Va. 203, 376 S.E.2d

97 (1988).

2. “By virtue of W. Va. Code, 37-4-3, a party desiring to compel partition

through sale is required to demonstrate that the property cannot be conveniently partitioned

in kind, that the interests of one or more of the parties will be promoted by the sale, and that

the interests of the other parties will not be prejudiced by the sale.” Syllabus point 3,

Consolidated Gas Supply Corp. v. Riley, 161 W. Va. 782, 247 S.E.2d 712 (1978).

3. “This Court may, on appeal, affirm the judgment of the lower court

when it appears that such judgment is correct on any legal ground disclosed by the record,

regardless of the ground, reason or theory assigned by the lower court as the basis for its

judgment.” Syllabus point 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965).

4. “A trial court is vested with a sound discretion in granting or refusing

i
leave to amend pleadings in civil actions. Leave to amend should be freely given when

justice so requires, but the action of a trial court in refusing to grant leave to amend a

pleading will not be regarded as reversible error in the absence of a showing of an abuse of

the trial court’s discretion in ruling upon a motion for leave to amend.” Syllabus point 6,

Perdue v. S.J. Groves & Sons Co., 152 W. Va. 222, 161 S.E.2d 250 (1968).

5. “The liberality allowed in the amendment of pleadings pursuant to Rule

15(a) of the West Virginia Rules of Civil Procedure does not entitle a party to be dilatory in

asserting claims or to neglect his or her case for a long period of time. Lack of diligence is

justification for a denial of leave to amend where the delay is unreasonable, and places the

burden on the moving party to demonstrate some valid reason for his or her neglect and

delay.” Syllabus point 3, State ex rel. Vedder v. Zakaib, 217 W. Va. 528, 618 S.E.2d 537

(2005).

ii
Davis, Justice:

The petitioner herein and defendant/third-party plaintiff below, David Earl

Bowyer (“Mr. Bowyer”), appeals from an order entered October 18, 2015, by the Circuit

Court of Doddridge County. By that order, the circuit court denied Mr. Bowyer’s motion to

amend his third-party complaint and granted partial summary judgment to the respondent

herein and plaintiff/third-party defendant below, Deborah L. Wyckoff, et al.1 (“Ms.

Wyckoff”). On appeal to this Court, Mr. Bowyer contends that the circuit court erred by

denying his motion to amend his third-party complaint and by adopting a prerequisite factor

to establish entitlement to a partition by sale that is not required by the governing authorities.

Upon our review of the parties’ arguments, the appendix record, and the pertinent authorities,

we conclude that the circuit court did not err by denying Mr. Bowyer’s amendment to his

third-party complaint. Moreover, any error committed by the circuit court in adopting an

additional factor to be satisfied in a suit for partition by sale is not grounds for reversal

insofar as Mr. Bowyer has neither established his entitlement to partition by sale as required

by W. Va. Code § 37-4-3 (1957) (Repl. Vol. 2011), and reiterated by this Court in Syllabus

point 3 of Consolidated Gas Supply Corp. v. Riley, 161 W. Va. 782, 247 S.E.2d 712 (1978),

1
Additional respondents herein are George J. Buff, III; J. Charles Buff; Estate
of Helen Buff; Janice A. Hurst; Ronald L. Cumberledge; Alex Semenik; Erin Brown;
Maribel Pontious; Nelson Swiger; The Seventh Day Baptist Memorial Fund, Inc.; Patricia
Ann Swiger; Ralph Dewayne Swiger; Thomas Swiger; and Joyce Swiger. Insofar as these
respondents have common interests in the instant proceeding and have filed a joint response
brief in the case sub judice, they will be referred to collectively as “Ms. Wyckoff.”

nor challenged the circuit court’s ruling in this regard. Accordingly, we affirm the October

18, 2015, order of the Circuit Court of Doddridge County.

FACTUAL AND PROCEDURAL HISTORY

The essential facts of this case are as follows. All of the parties herein are co

owners of several tracts of land in Doddridge County, West Virginia. The respondent (Ms.

Wyckoff) filed this lawsuit against the petitioner (Mr. Bowyer) in 2010, seeking to partition

the surface in kind or by sale. Mr. Bowyer then filed a counterclaim and third-party

complaint, seeking to partition the surface and/or2 the coal, oil, and gas below the surface

either through partition by allotment or partition by sale. Some of the respondent parties

already have leased their oil and gas interests to Antero Resources Corporation (“Antero”).

The remaining respondents also have expressed a desire to lease their mineral interests to

Antero, but they have been precluded from doing so by the instant litigation. It appears that

Mr. Bowyer wishes to develop the shallow minerals in his property himself, while leasing

his deeper mineral interests to Antero.

2
Mr. Bowyer presumably phrased the property interests sought to be partitioned
in the alternative given that the extent of the various co-owners’ interests varied as to the
particular parcel of property under consideration, i.e., some co-owners owned only surface
rights in the subject tract(s), while others owned only mineral rights, while still others owned
both surface and mineral rights.

Following a failed mediation attempt, the circuit court granted summary

judgment to Ms. Wyckoff by order entered October 18, 2015. In summary, the circuit court

found that Mr. Bowyer had not established the statutory elements for a partition by allotment

or by sale and denied Mr. Bowyer’s request to further amend his third-party complaint. From

these adverse rulings, Mr. Bowyer appeals to this Court.

II.

STANDARD OF REVIEW

The errors assigned by Mr. Bowyer herein pertain to the circuit court’s rulings

interpreting the law regarding partition by sale and the amendment of complaints. With

respect to Mr. Bowyer’s contention that the circuit court misinterpreted or misapplied the law

in rendering its ruling, we previously have held that “[w]here the issue on an appeal from the

circuit court is clearly a question of law or involving an interpretation of a statute, we apply

a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459

S.E.2d 415 (1995). Accord Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t of West

Virginia, 195 W. Va. 573, 466 S.E.2d (1995) (“Interpreting a statute or an administrative rule

or regulation presents a purely legal question subject to de novo review.”).

Moreover, regarding Mr. Bowyer’s assertion that the circuit court improperly

denied his motion to amend his complaint, we have held that “[a] motion to amend a pleading

is addressed to the sound discretion of the trial court and such discretion will not be disturbed

on appeal unless there is a showing of abuse of discretion.” Syl. pt. 1, Nellas v. Loucas, 156

W. Va. 77, 191 S.E.2d 160 (1972).

Mindful of these standards, we proceed to consider the parties’ arguments.

III.

DISCUSSION

On appeal, Mr. Bowyer has assigned three errors, which are summarized as

follows. Mr. Bowyer first argues that the circuit court erred by adopting an extra prerequisite

factor for ordering a partition by sale that is not included in the list of three statutory elements

therefor set forth in W. Va. Code § 37-4-3, and reiterated by this Court in Syllabus point 3

of Consolidated Gas Supply Corp. v. Riley, 161 W. Va. 782, 247 S.E.2d 712, which extra

factor required there to be “an inability of the mineral owners to agree on how to develop the

mineral estate.” Next, Mr. Bowyer claims that the circuit court erred by concluding that the

parties agreed regarding the development of the mineral estate; stated otherwise, the circuit

court erred by finding that the extra prerequisite factor addressed in the first assignment of

error had not been satisfied. Finally, Mr. Bowyer contends that the circuit court erred by

refusing his motion to further amend his complaint, which amendments pertained to (1)

satisfaction of the extra prerequisite factor discussed in the foregoing assignments of error

and (2) satisfaction of one of the original statutory elements set forth in W. Va. Code § 37-4

3. We will consider each of these assigned errors in turn.3

A. Requisite Elements to Establish Partition by Sale

Mr. Bowyer first contends that the circuit court erred by adopting a new

prerequisite factor to establish his entitlement to partition by sale and that the court further

erred by concluding that he had not satisfied such factor. We agree with Mr. Bowyer that the

circuit court erred by adopting an additional prerequisite factor that is not statutorily required

to establish entitlement to a partition by sale. However, we conclude that reversal is not

warranted on this basis because the circuit court additionally considered the three statutory

elements set forth in W. Va. Code § 37-4-3, and reiterated by this Court in Syllabus point 3

of Riley, to find that Mr. Bowyer was not entitled to partition by sale and to grant summary

judgment to Ms. Wyckoff.

With respect to the error, itself, Mr. Bowyer is correct that the circuit court

adopted an additional, prerequisite factor to establish the elements of partition by sale insofar

as the circuit court noted, in its conclusions of law, that

3
Although the case sub judice is before this Court on appeal from the circuit
court’s grant of summary judgment to the respondents, our review is limited to the errors
assigned by Mr. Bowyer. Insofar as Mr. Bowyer’s assignments of error are exceedingly
specific, we do not consider the propriety of the circuit court’s summary judgment ruling, as
a whole.

[i]t is a predicate to the partition of an oil and gas mineral
interest that there be an inability of the mineral owners to agree
on how to develop the mineral estate. Cawthon, et al. v. CNX
Gas Company, LLC, No. 11-1231 W. Va. Supreme Court, Nov.
16, 2012 (memorandum decision); 2012 WL 5835068 (W. Va.).
In the absence of proof showing an unwillingness or inability to
agree on the development of the mineral estate, a partition by
sale or allotment is inappropriate.

Nevertheless, in the several conclusions of law preceding this passage, the circuit court

considered both the statutory factors for partition by sale set forth in W. Va. Code § 37-4-3,

as well as this Court’s reiteration thereof in Syllabus point 3 of Riley, in support of its

conclusion that Mr. Bowyer had not satisfied these criteria, either.

W. Va. Code § 37-4-3 (1957) (Repl. Vol. 2011) explains when partition by

allotment or by sale is proper:

When partition cannot be conveniently made, the entire
subject may be allotted to any party or parties who will accept
it, and pay therefor to the other party or parties such sum of
money as his or their interest therein may entitle him or them to;
or in any case in which partition cannot be conveniently made,
if the interests of one or more of those who are entitled to the
subject, or its proceeds, will be promoted by a sale of the entire
subject, or allotment of part and sale of the residue, and the
interest of the other person or persons so entitled will not be
prejudiced thereby, the court, notwithstanding the fact that any
of those entitled may be an infant, insane person, or convict,
may order such sale, or such sale and allotment, and make
distribution of the proceeds of sale, according to the respective
rights of those entitled, taking care, when there are creditors of
any deceased person who was a tenant in common, joint tenant,
or coparcener, to have the proceeds of such deceased person’s
part applied according to the rights of such creditors. Where it

clearly appears to the court that partition cannot be conveniently
made, the court may order sale without appointing
commissioners. . . .

The elements required to demonstrate a partition by allotment are rather

straightforward:

Under W. Va. Code, 37-4-3, when partition in kind
“cannot be conveniently made, the entire subject may be allotted
to any party or parties who will accept it, and pay therefor to the
other party or parties such sum of money as his or their interest
may entitle him or them to. . . .”

Syl. pt. 2, Smith v. Smith, 180 W. Va. 203, 376 S.E.2d 97 (1988). Partition by allotment

requires more than a mere offer by one of the parties to buy out
the other:

“If, however, only one of the parties is willing to
have the whole allotted to him, and the other
parties are unwilling to take for their interests
what such party is willing to pay therefor, then the
court may either refer the matter to a
commissioner to ascertain the fair value to be paid
for said interests, or order the whole subject to be
sold, as the one or the other course may seem to
the court to be the most advisable, and promotive
of the interests of all the parties in interest.”

Smith, 180 W. Va. at 207-08, 376 S.E.2d at 101-02 (quoting Corrothers v. Jolliffe, 32 W. Va.

562, 565, 9 S.E. 889, 890 (1889)) (footnote omitted).

However, the requirements to establish partition by sale are a bit more

complex. We clarified the requisite statutory elements necessary to compel partition by sale

in Syllabus point 3 of Consolidated Gas Supply Corp. v. Riley, 161 W. Va. 782, 247 S.E.2d

712 (1978):

By virtue of W. Va. Code, 37-4-3, a party desiring to
compel partition through sale is required to demonstrate that the
property cannot be conveniently partitioned in kind, that the
interests of one or more of the parties will be promoted by the
sale, and that the interests of the other parties will not be
prejudiced by the sale.

In rendering its ruling, the circuit court concluded that Mr. Bowyer had not

proven his entitlement to partition by allotment4 or by sale. With specific respect to partition

by sale, the court explained that

[s]trict compliance with the requirements permitting a
partition by sale is required inasmuch as such remedy relies
exclusively on statutory enactment and was unknown at
common law. Loudin v. Cunningham, 82 W. Va. 453, 96 S.E.
59 (1918); W. Va. Code § 37-4-3 (1957). Therefore, absent
satisfaction of the legal prerequisites to forced sale, there is no
right to partition by sale and the same is properly denied
notwithstanding a finding that the subject property interest is not
capable of a convenient partition in kind.

The question of what promotes or prejudices a party’s
interest when a partition through sale is sought must necessarily
turn on the particular facts of each case. Riley, supra.

4
We do not consider the propriety of the circuit court’s ruling as to partition by
allotment insofar as that issue has not been raised as an assignment of error in this case.

The forced sale of oil and gas minerals precludes the
owner the benefit of lease consideration and the prospect of
production proceeds, which represent the primary and perhaps
the exclusive value which such ownership vests. Therefore, the
public interest will not be promoted by sale.

The court ultimately ruled that the respondents, Ms. Wyckoff, et al., were entitled to

summary judgment because Mr. Bowyer had not established his entitlement to partition by

allotment or by sale pursuant to W. Va. Code § 37-4-3.

Because the circuit court, in addition to applying the improper fourth factor,

also properly considered and applied the statutory elements for partition by allotment or by

sale to deny Mr. Bowyer relief, the circuit court’s order should be affirmed insofar as it did

not solely base its decision on the improper fourth factor. In this regard, we previously have

observed that,

[d]espite the erroneous ruling by the circuit court on the
foregoing issue, we determine that it made the right ruling in
this case, but based upon incorrect reasoning. As we have
explained, this Court is not bound by the incorrect reasoning
relied upon by a lower court:

We have consistently held that “[t]his Court may,
on appeal, affirm the judgment of the lower court
when it appears that such judgment is correct on
any legal ground disclosed by the record,
regardless of the ground, reason or theory
assigned by the lower court as the basis for its
judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149
W. Va. 246, 140 S.E.2d 466 (1965); see also
Cumberland Chevrolet Oldsmobile Cadillac, Inc.
v. General Motors Corp., 187 W. Va. 535, 538

[n. 4], 420 S.E.2d 295, 298 n. 4 (1992) (stating
that “even if the reasoning of a trial court is in
error . . . we are not bound by a trial court’s
erroneous reasoning”); State ex rel. Dandy v.
Thompson, 148 W. Va. 263, 274, 134 S.E.2d 730,
737, cert. denied, [National Sur. Corp. v. U.S. for
Use & Benefit of Olmos Bldg. Materials Co.,] 379
U.S. 819, 85 S. Ct. 3[8], 13 L. Ed. 2d 30 (1964)
(stating in criminal context that “correctness of
. . . [trial court’s] final action is the only material
consideration, not the stated reasons for [the trial
court’s] taking such action”).

State v. Boggess, 204 W. Va. 267, 276, 512 S.E.2d 189, 198
(1998).

Old Republic Ins. Co. v. O’Neal, 237 W. Va. 512, ___, 788 S.E.2d 40, 53 (2016). Because

the circuit court found that Mr. Bowyer has not proven his entitlement to partition in this

case, and because Mr. Bowyer has not challenged this ruling on appeal, we affirm the circuit

court’s order in this regard.5

B. Amendment of Complaints

Mr. Bowyer additionally contends that the circuit court erred by denying his

request to amend his complaint. We conclude that the circuit court did not abuse its

discretion in this regard because Mr. Bowyer’s proffered amendments were irrelevant

5
Given our decision to affirm the circuit court’s order as to Mr. Bowyer’s first
assignment of error, we further conclude that we need not consider Mr. Bowyer’s second
assignment of error because it concerns the circuit court’s factual findings as to the fourth
prerequisite factor which the court erroneously adopted, but which error does not constitute
grounds for reversal of the circuit court’s summary judgment order.

(regarding the fourth prerequisite factor improperly adopted by the circuit court) and

untimely (regarding satisfaction of one of the statutory elements for partition by sale).

West Virginia Rule of Civil Procedure 15(a) governs amendments to pleadings:

(a) Amendments. A party may amend the party’s
pleading once as a matter of course at any time before a
responsive pleading is served or, if the pleading is one to which
no responsive pleading is permitted and the action has not been
placed upon the trial calendar, the party may so amend it at any
time within 20 days after it is served. Otherwise a party may
amend the party’s pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given
when justice so requires. . . .

(Emphasis added). Whether to permit an amendment is left to the presiding court’s

discretion:

A trial court is vested with a sound discretion in granting
or refusing leave to amend pleadings in civil actions. Leave to
amend should be freely given when justice so requires, but the
action of a trial court in refusing to grant leave to amend a
pleading will not be regarded as reversible error in the absence
of a showing of an abuse of the trial court’s discretion in ruling
upon a motion for leave to amend.

Syl. pt. 6, Perdue v. S.J. Groves & Sons Co., 152 W. Va. 222, 161 S.E.2d 250 (1968).

Moreover,

“[t]he purpose of the words ‘and leave [to amend] shall
be freely given when justice so requires’ in Rule 15(a) W. Va.
R. Civ. P., is to secure an adjudication on the merits of the
controversy as would be secured under identical factual

situations in the absence of procedural impediments; therefore,
motions to amend should always be granted under Rule 15
when: (1) the amendment permits the presentation of the merits
of the action; (2) the adverse party is not prejudiced by the
sudden assertion of the subject of the amendment; and (3) the
adverse party can be given ample opportunity to meet the issue.”
Syllabus Point 3, Rosier v. Garron, Inc., 156 W. Va. 861, 199
S.E.2d 50 (1973).

Syl. pt. 2, State ex rel. Vedder v. Zakaib, 217 W. Va. 528, 618 S.E.2d 537 (2005).

Nevertheless,

[t]he liberality allowed in the amendment of pleadings
pursuant to Rule 15(a) of the West Virginia Rules of Civil
Procedure does not entitle a party to be dilatory in asserting
claims or to neglect his or her case for a long period of time.
Lack of diligence is justification for a denial of leave to amend
where the delay is unreasonable, and places the burden on the
moving party to demonstrate some valid reason for his or her
neglect and delay.

Syl. pt. 3, Vedder, 217 W. Va. 528, 618 S.E.2d 537.

In the case sub judice, Mr. Bowyer filed his initial counterclaim and third-party

complaint on August 2, 2012. He then filed an amended pleading on July 15, 2013; it

appears that this amendment primarily added additional co-owner parties. Mr. Bowyer

sought to incorporate the instant amendments at issue herein on May 8, 2015, after the

parties’ failed mediation and after the respondents moved for summary judgment on March

10, 2015. The amendments Mr. Bowyer sought to add to his pleading are as follows:

Paragraph 111:
With respect to the oil and natural gas within and

underlying the Subject Property, the parties to this action have
been unable to arrive at a common plan of development thereof.
While the known Third-Party Defendants claim to have a desire
to develop the mineral resources of the Subject Property, several
of them are holding out from granting their consent for what can
only be described as unreasonable terms. In the face of such
intransigence, partition by sale is altogether proper in order to
protect the correlative rights of other coparceners of the Subject
Property.

Paragraph 112:
Allotment or partition by sale of the Subject Property
would promote the interest of Defendant David E. Bowyer, as
it would permit him to personally develop the oil and natural gas
resources within and underlying the Subject Property. No other
parties to this proceeding have expressed an interest, or have the
ability, to personally develop these resources.

In refusing to permit these amendments, the circuit court ruled that there was

unreasonable delay in moving to amend, the amendments were futile, and they would

prejudice the respondents. We agree with the circuit court’s assessment of the proffered

amendments. In short, Paragraph 111 speaks to the fourth prerequisite factor improperly

adopted by the circuit court. As such, it is not relevant to either Mr. Bowyer’s partition suit

brought under W. Va. Code § 37-4-3 or the circuit court’s disposition thereof. Furthermore,

Paragraph 112 addresses one of the essential elements of the statutory partition test of § 37-4

3, namely promotion of the movant’s interest. The current version of this statute has been

in effect since 1957, and this Court’s reiteration of the same occurred in 1978. This

amendment does not address a new theory of law, but rather a longstanding principle, and

an essential element of his claim for relief, of which Mr. Bowyer should have been aware

when he filed his initial pleading. Accordingly, the circuit court did not err by refusing either

of these proffered amendments to Mr. Bowyer’s counterclaim and third-party complaint, and

the circuit court’s ruling as to this issue is affirmed.

IV.

CONCLUSION

For the foregoing reasons, the October 18, 2015, order of the Circuit Court of

Doddridge County is hereby affirmed.

Affirmed.