FILED
STATE OF WEST VIRGINIA June 23, 2021
SUPREME COURT OF APPEALS EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Ronald R. Robertson, Jr., and Dennis P. Samson,
Plaintiffs Below, Petitioners
vs.) No. 20-0341 (Morgan County 19-C-19)
David P. Cohen and Monya J. Cohen,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioners Ronald R. Robertson, Jr., and Dennis P. Samson, by counsel Eric S. Black,
appeal the March 11, 2020, order of the Circuit Court of Morgan County that granted respondents
David P. and Monya J. Cohen’s motion for summary judgment in petitioners’ nuisance and
invasion of privacy action. Respondents, by counsel Richard G. Gay, respond in support of the
circuit court’s order.
This 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 reasons,
a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
Petitioners own a home on a 4.7-acre lot in Quaint Hills Woods, a rural subdivision in
Berkeley County near Cacapon Mountain. Petitioners reside in that home about two weeks each
month. Respondents, the “Cohens,” own a home on a 20.58-acre lot that is adjacent to petitioners’
lot, but located in a different subdivision, the Quaint Hills Mountain Section. The Cohens use their
home on weekends. Petitioners, respondents, and the other residents of respondents’ subdivision
access their lots using a forty-foot-wide right-of-way that runs off County Route 9/18 and over
respondents’ acreage.
In October of 2018, respondents’ informal homeowners’ association authorized some of
its members, including defendant below Carl E. Hillsman, 1 to erect a “Mighty Mule Steel Dual
Swing Driveway Fence Gate” (the “new gate”) on the right-of-way over respondents’ property.
The new gate replaced a former hand-operated gate and was installed 75 feet past the entrance to
1
Carl E. Hillsman, a named defendant below, is now deceased. Petitioners did not
substitute Mr. Hillsman’s estate into this action – as required by Rule 25 of the West Virginia
Rules of Civil Procedure – by the circuit court’s October 9, 2019, deadline. Accordingly, Mr.
Hillsman is no longer a party to the case below and is not a party to the instant appellate action.
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petitioners’ driveway, and 175 feet from petitioners’ house. The new gate has a keypad/solar entry
panel and makes a beeping sound when it opens and closes. Specifically, the new gate beeps for
thirty-one seconds when it opens and for thirty seconds when it closes. Respondents’ homeowner’s
association also approved the installation of a halide area light that was mounted on a sixteen-foot
pole near the gate. The halide light replaced a motion-activated light that was located near the old
manual gate. Located to the right of the new gate is a turnaround area. The parties dispute whether
this area is of a sufficient size to allow drivers to use the space as a turnaround. Petitioners claim
that once the new gate was installed, drivers who could not open the new gate backed their vehicles
down the right-of-way and then used petitioners’ driveway as a turnaround. Thereafter, Mr.
Hillsman – on his own accord – installed a camera near the gate. Mr. Hillsman had exclusive
access to the recordings generated by the camera, which showed, among other things, part of
petitioners’ house and yard.
Petitioners filed a complaint against respondents and Mr. Hillsman alleging nuisance and
invasion of privacy due to the installation of the new gate, camera, and new light. 2 Petitioners pled
that respondents’ actions materially and substantially altered the natural lighting, peaceful sounds,
and natural environment of their property causing continuous distress and anxiety to petitioners
and their guests. Petitioners also pled that respondents and Mr. Hillsman caused substantial
aesthetic damage to petitioners’ real property and substantially and unreasonably impaired their
privacy and the quiet enjoyment of their home.
The parties attempted to mediate their dispute without success. The day after the mediation,
the new light was moved, and a week later a shield was placed on the new light so that it did not
shine onto petitioners’ property. The camera installed by Mr. Hillsman was also moved so that it
no longer viewed petitioners’ house and lot.
Petitioner Dennis P. Samson testified at his deposition as follows: Petitioners live half-time
in West Virginia and half-time in Massachusetts and they have owned their Quaint Hills Woods
property for about eleven years. He can see the light near the gate when the leaves are off the trees.
When the leaves are on the trees, he has to look for the gate to see it. He wants the gate and the
light removed because they are “ugly,” and he wants “nothing” put in their place. He claimed that
the gate causes backups at the turnaround area. He further testified that he and Mr. Robertson put
a chain across their driveway to stop cars from turning around in it; that two or three cars
turnaround at the gate per week; and that about six to twelve cars go through the gate a day. He
said that the installation of the camera resulted in an invasion of petitioners’ privacy because the
camera captured petitioners’ house and the people going in and out of their yard. He further
claimed that, although petitioners cannot hear the gate beeping when it opens and closes, their dog
can hear it and, when he does, he barks. He asserted that the stress from the “last year” and this
lawsuit were factors in his heart attack. He believed that the gate reduced the value of his property;
however, he had not had his property reappraised since the installation of the new gate and he said
that he did not intend to do so. He admitted that respondents were not responsible for the camera.
He claimed that as a result of the new gate, camera, and new light, petitioners spent about $100.00
for signs, $213.91 for the chain across their driveway, and $369.72 for shades for their bedroom
windows.
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Petitioners also alleged destruction of property against Mr. Hillsman.
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Petitioner Ronald R. Robertson, Jr. testified in his deposition as follows: He purchased the
subject property in 2003. The old gate was fifteen to twenty feet closer to his house than the new
gate. His privacy was invaded when the camera picked up his house and part of his yard. He agreed
that people turn around at the gate two or three times a week. He said that after the mediation, a
shield was placed on the light and, therefore, he can no longer see light in his house and the “light
footprint” on his property has been reduced. However, he stated that he does not want to see the
light at all. He also said that he can sometimes hear the gate beeping as it opens and closes. Finally,
he said that he did not contact respondents about the gate or light, but he left them a message.
Respondent David P. Cohen testified during his deposition as follows: In 2016, a
homeowner in the Quaint Hills Mountain Section expressed concern about his wife’s safety given
that she had to get out of her car to open the gate to enter the subdivision and, therefore, was open
to attack by humans and/or animals. He explained that, in 2018, the members of the Quaint Hills
Mountain Section’s homeowners association agreed to upgrade the manual gate at the entrance to
the subdivision due, in part, to trespassing hunters and four-wheelers, and given that drug
paraphernalia was found on one of the subdivision’s properties. He said that he suggested that one
of the full-time residents speak with the homeowners who lived nearby but outside the Quaint Hills
Mountain Section to ensure they were on board with the project and were aware of the construction
schedule. Mr. Cohen testified that Mr. Hillsman (1) helped install the new gate and the new light
to prevent drivers from inadvertently hitting the gate, and (2) took it upon himself to install the
camera. Mr. Cohen averred that he did not give Mr. Hillsman permission to install the camera, that
he confronted Mr. Hillsman when he learned about the camera, and that he told Mr. Hillsman he
should have talked to others before installing the camera. Mr. Cohen did not mention the matter to
petitioners because he assumed that another member of the homeowner’s association had done so.
Mr. Cohen claimed that he purchased key fobs for petitioners and the other bordering neighbors
so that they could remotely open and close the gate. Mr. Cohen opined that there is sufficient room
to the right of the new gate for a car to turn around. Mr. Cohen also said that when he learned that
petitioners were concerned about the new light, he purchased a new light to replace the problematic
light; however, after the mediation in this matter, others moved the new light and put a shield on
it. Finally, Mr. Cohen testified that there was no difference regarding cars turning around at the
old gate and the new gate, except that the cars had more room to turn around after the new gate
was installed.
Respondents’ expert, Mark Sokalski, a registered chemical engineer, testified as follows:
The new lamp is a dusk to dawn lamp and has now been shielded. No light from the lamp can be
measured at petitioner’s driveway or in their bedroom. As for the sound of the gate opening and
closing, it cannot be heard at petitioner’s driveway, and cannot be heard by humans in petitioners’
bedroom. Mr. Sokalski further testified that Morgan County’s Noise Ordinance provides that noise
levels in excess of sixty-five decibels, either intermittent or continuous, for a period of at least
thirty minutes, violate that noise ordinance. Finally, he opined that the opening and closing of the
gate and the concomitant beeping for sixty-one seconds do not violate the noise ordinance. 3
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The record on appeal indicates that, at the gate, the beeping sounds at sixty-seven to
seventy decibels. At the entrance to petitioner’s driveway, the beeping sounds at about forty to
forty-three decibels.
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Respondents moved for summary judgment claiming that petitioners did not raise any
issues of material fact in their nuisance or invasion of privacy claims. By order entered March 11,
2020, the circuit court agreed and granted respondents’ motion concluding that “the determination
of whether or not a nuisance has been proved by [petitioners] requires more than [petitioners’]
reliance on the bald allegations in their Complaint, and requires a showing of a material disputed
fact, which did not occur here.” As for petitioners’ invasion of privacy claim, the circuit court
found that the security camera directed at the new gate did not satisfy the definition of invasion of
privacy as found in Syllabus Point 8 of Crump v. Beckley Newspapers, Inc., 173 W. Va. 699, 320
S.E.2d 70 (1984) (“An ‘invasion of privacy’ includes . . . an unreasonable intrusion upon the
seclusion of another[.]”) The court also noted that the camera had been moved and no longer
showed petitioner’s house or yard, and that petitioners admitted that respondents never surveilled
their house and that no pictures were taken of them by the camera except when they were in the
right-of-way or in their driveway in full view of the gate. Finally, the court found that petitioners
admitted respondents were not responsible for the installation of the camera or any surveillance by
it; that Mr. Hillsman was no longer a party to this case as petitioners failed to substitute his estate
as a party defendant; and that petitioners admitted that no one trespassed on their property, took
pictures of them or their guests, looked in their windows, or in any way bothered them at any time.
Petitioners now appeal. We review the circuit court’s entry of summary judgment de novo.
See Syl. Pt. 1 Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
Summary judgment is appropriate if, from the totality of the evidence
presented, the record could not lead a rational trier of fact to find for the nonmoving
party, such as where the nonmoving party has failed to make a sufficient showing
on an essential element of the case that it has the burden to prove.
Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).
Petitioners raise two assignments of error on appeal. Petitioners first argue that the circuit
court erred in granting respondents’ motion for summary judgment because they were entitled to
have their nuisance claims adjudicated by a jury as provided in Taylor v. Culloden Public Service
District, 214 W. Va. 639, 591 S.E.2d 197 (2003). In Taylor, the plaintiffs appealed the circuit
court’s dismissal of their nuisance action. This Court reversed on the ground that the circuit court
failed to properly apply the standard for ruling on a summary judgment motion. Petitioners
highlight the following language from Taylor:
Rather than assessing the evidence presented to determine the existence of
any material facts, as is the task of the trial court on a summary judgment motion,
the court engaged in a weighing of the evidence. Under the trial court’s reasoning,
because the Balls [intervenors below/appellants] had actually used their property
for some recreational purposes, they cannot be said to have suffered a nuisance for
which they would be entitled to damages. This is clearly a question more suited for
the jury and not one that typically is answered by means of a summary judgment
ruling. The court similarly engaged in a weighing of the evidence in stating that the
Balls suffered no emotional injury. . . . And, as to the ultimate issue of whether the
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Balls have demonstrated a nuisance as a result of the actions of Appellees, this too
must be resolved by a jury. See Syl. Pt. 3, Sticklen v. Kittle, 168 W.Va. 147, 287
S.E.2d 148 (1981) (holding that “[a]s a general rule, a fair test as to whether a
particular use of real property constitutes a nuisance is the reasonableness or
unreasonableness of the use of the property in relation to the particular locality
involved, and ordinarily such a test to determine the existence of a nuisance raises
a question of fact”).
In view of the record of this case, which clearly includes evidence of acts
that may be determined by a jury to have constituted a nuisance as regards the Balls,
it was highly improper of the trial court to summarily conclude that Appellants had
presented no evidence of a nuisance.
Taylor, 214 W. Va. at 649-50, 591 S.E.2d at 207-08. Petitioners contend that the circuit court
failed to address their argument that the question of nuisance is one for a jury and, instead, analyzed
the evidence and found that petitioners failed to demonstrate nuisance or invasion of privacy.
Petitioners highlight that “[t]he circuit court’s function at the summary judgment stage is not ‘to
weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.’ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511,
91 L.Ed.2d 202, 212 (1986).” Williams, 194 W. Va. at 59, 459 S.E.2d at 336. Petitioners argue that
a jury should have determined whether respondents’ action constituted a nuisance, and the
damages, if any.
Petitioners, however, misunderstand the point of the circuit court’s ruling, which was the
result of a straightforward application of the summary judgment standard to the parties’ briefs,
exhibits, and depositions; respondents’ expert’s report; and the law relating to nuisances. That
application demonstrated the lack of genuine and material facts in dispute in regard to petitioners’
nuisance claim. “A ‘trialworthy’ issue requires not only a ‘genuine’ issue but also an issue that
involves a ‘material’ fact. See Anderson, 477 U.S. at 248 . . . .” Williams, 194 W. Va. at 60, 459
S.E.2d at 337. “[T]he term ‘material’ means a fact that has the capacity to sway the outcome of
the litigation under the applicable law.” Id. at 60 n.13, 459 S.E.2d at 337 n.13 (citations omitted).
Petitioners did not direct the circuit court or this Court to any material facts in dispute. Instead,
they pointed to the allegations in their complaint which fail to show any disputed material facts.
Petitioners also rely on a series of e-mails between the homeowners in respondents’ subdivision
regarding the security camera in an attempt to create a disputed issue of material fact regarding
their claim of invasion of privacy against Mr. Hillsman. As the circuit court found, those emails
do not prove any of petitioners’ claims and, instead, relate only to the installation of the gate, light,
and camera.
Petitioners rely solely on Taylor for their claim that a jury must decide whether a nuisance
exists. In Taylor, we reversed the circuit court’s summary judgment order in a nuisance action
regarding raw sewage on the plaintiffs’ land and found that the plaintiffs produced ample evidence
of their claim. In that regard, we said,
[g]iven the stage of this matter, however, the issue of whether the [plaintiffs’]
evidence will prove adequate to convince a jury of the alleged nuisance they have
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endured or even whether they have sufficient evidence of damages is not before us.
All that we can determine at this procedural juncture is that the lower court failed
to properly apply the standard for ruling on a summary judgment motion. As we
recognized in Harris v. Jones, 209 W.Va. 557, 550 S.E.2d 93 (2001), “[t]he
standard for summary judgment is high.” Id. at 561, 550 S.E.2d at 97. And, “‘even
where there is no dispute as to the evidentiary facts in the case but only as to the
conclusions to be drawn therefrom,’” summary judgment should still be denied.
Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 336 (1995)
(quoting Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.1951)). This is
because “‘the drawing of legitimate inferences from the facts are jury functions, not
those of a judge.’” Williams, 194 W.Va. at 59, 459 S.E.2d at 336 (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
Taylor, 214 W. Va. at 649, 591 S.E.2d at 207. Taylor is not applicable here because, as the circuit
court found, petitioners did not proffer any evidence refuting respondents’ facts.
As for petitioners’ contention that they had a right to a jury trial in a case seeking a
permanent injunction, we ruled in Weatherholt v. Weatherholt, 234 W. Va. 722, 769 S.E.2d 872
(2015), a case concerning a permanent injunction to prohibit obstructions on a right-of-way and
whether a jury trial was required, as follows:
In the petitioners’ first argument on the jury trial issue, they aver that the
circuit court erred in denying them a jury trial on the permanent injunction issue.
The petitioners are incorrect. Generally, there is no right to a jury trial in a
proceeding in which a permanent injunction is sought. This is because at common
law, a proceeding in which a permanent injunction was sought was heard in a court
of equity, and there is no right to a jury trial in a matter traditionally heard at equity.
It has long been the law of this State that “[a] court of equity has jurisdiction, by
injunction, to prevent a continuing material interference with an easement.” Syl. pt.
4, Johnson v. Gould, 60 W.Va. 84, 53 S.E. 798 (1906). Further, “[s]ince equitable
issues are generally determined by a court without a jury, one is not entitled, as a
matter of right under the law, to a jury trial of such issues. . . .” Syl. pt. 1, in part,
Human Rights Comm’n v. Tenpin Lounge, 158 W.Va. 349, 211 S.E.2d 349 (1975).
In addition, this Court has indicated that “[w]here already, at the time of the
adoption of the Constitution, equity exercised jurisdiction in a certain matter, the
provision of the Constitution guarantying trial by jury does not relate to or give
right to trial by jury in suits in equity involving such matter.” Syl. pt. 7, Davis v.
Settle, 43 W.Va. 17, 26 S.E. 557 (1896); see also Bishop Coal Co. v. Salyers, 181
W.Va. 71, 77, 380 S.E.2d 238, 244 (1989) (“Suits in equity were tried without
juries.”); Marthens v. B & O Railroad Co., 170 W.Va. 33, 38 n. 2, 289 S.E.2d 706,
712 n. 2 (1982) ( “[T]hose issues heretofore decided in equity should today be tried
to the judge alone.”). Finally, as noted above, “the power to grant or refuse . . . a
permanent injunction . . . ordinarily rests in the sound discretion of the trial court
[not a jury], according to the facts and the circumstances of the particular case. . .
.” Syl. pt. 11, Stuart, 141 W.Va. 627, 92 S.E.2d 891. Therefore, we conclude that
6
the circuit court did not err in denying the petitioners a jury trial on the respondent’s
suit for a permanent injunction.
Weatherholt, 234 W. Va. at 727, 769 S.E.2d at 877. See also Witteried v. The City of Charles
Town, No. 17-0310 (W. Va. May 11, 2018)(memorandum decision). In light of these cases, we
reject petitioners’ first assignment of error.
In petitioners’ second assignment of error, they argue that the circuit court erred in ruling
that respondents’ efforts at mitigation/subsequent remedial measures dissolved or eliminated any
existing nuisance. The circuit court found that “[s]ince nuisance is an equitable principle which
requires the [c]ourt, under certain circumstances, not present here, to abate, the [c]ourt concludes
there is nothing to abate that now constitutes a nuisance.” The circuit court highlighted that a shade
had been put on the new light and that the camera had been relocated and, therefore, no longer
viewed petitioners’ house or property. Petitioners counter that mitigation/remedial measures do
not preclude them from proving their nuisance and violation of privacy case and from seeking
damages for those claims. Petitioners admit, however, that mitigation/remedial measures may
ameliorate some of the claimed nuisance.
We agree with respondents. Here, the circuit court did not err in finding that respondents’
mitigation/subsequent remedial measures dissolved or eliminated any claimed existing nuisance.
First, any invasion of privacy was mitigated. As petitioners acknowledged, the camera installed by
Mr. Hillsman (without the approval or involvement of respondents) was moved and, therefore, no
longer captures images of petitioners’ house. Further, it is undisputed that the light by the gate was
moved and shielded; thus, no light can be measured at the gate to petitioners’ property or inside
their house. Moreover, respondents’ expert testified that the beeping sound made as the gate opens
and closes cannot be heard in petitioners’ driveway or their bedroom. In fact, Petitioner Samson
admitted during his deposition that he could not hear the gate opening and closing from his
bedroom. Accordingly, the circuit court found, and we agree, that there was no nuisance to abate.
Mere annoyance or inconvenience does not constitute an actual nuisance. Instead,
“the term [‘nuisance’] is generally ‘applied to that class of wrongs which arises
from the unreasonable, unwarrantable or unlawful use by a person of his own
property and produces such material annoyance, inconvenience, discomfort, or hurt
that the law will presume a consequent damage.’” Harless, 145 W.Va. at 274, 114
S.E.2d at 552 (citation omitted). Stated another way, “nuisance is the unreasonable,
unusual, or unnatural use of one’s property so that it substantially impairs the right
of another to peacefully enjoy his or her property.” 58 Am.Jur.2d Nuisances § 2
(2002).
Booker v. Foose, 216 W. Va. 727, 730, 613 S.E.2d 94, 97 (2005).
“An interference with the private use and enjoyment of another’s land is unreasonable
when the gravity of the harm outweighs the social value of the activity alleged to cause the harm.”
Syl. Pt. 2, Hendricks v. Stalnaker, 181 W. Va. 31, 380 S.E.2d 198 (1989). Here, the “gravity of the
harm” included trespassers and drug users on landowners’ property in the Quaint Hills Mountain
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Section, and the risk to residents of attack from persons or wildlife. That risk of harm greatly
outweighs any slight inconvenience petitioners may experience from having a vehicle turning
around at the new gate two or three times a week.
In Bansbach v. Harbin, 229 W. Va. 287, 728 S.E.2d 533 (2012), this Court found that,
Critical to understanding the reach of nuisance law is recognition of the fact
that “[r]ecovery for a private nuisance is limited to plaintiffs who have suffered a
significant harm to their property rights or privileges caused by the interference.”
Hendricks, 181 W.Va. at 34, 380 S.E.2d at 201 (citing Restatement (Second) of
Torts §§ 821E, 821F (1979)); see also Martin v. Williams, 141 W.Va. 595, 611, 93
S.E.2d 835, 844 (1956) (describing nuisance as involving material reduction in
homeowner’s enjoyment of property and material interference with physical
comfort of persons in their homes). Illustrative of this need to demonstrate
significant harm is Karpiak v. Russo, 450 Pa.Super. 471, 676 A.2d 270 (1996), a
case in which homeowners sought to enjoin a landscaping business on grounds that
the operation of noisy machinery, foul odors, and escaping dust all constituted a
private nuisance. In affirming the trial court’s dismissal of the action, the appellate
court explained “that while appellees’ actions may have been annoying and a cause
of inconvenience, as a matter of law, appellants failed to establish that the invasion
was seriously annoying or intolerable.” 676 A.2d at 273. As the Iowa Supreme
Court aptly observed in Mohr v. Midas Realty Corp., 431 N.W.2d 380 (Iowa.1988),
“[n]ot every interference with a person’s use and enjoyment of land is actionable.”
Id. at 381 (citing Restatement (Second) of Torts § 822 cmt. clause (a)).
Bansbach at 292, 728 S.E.2d at 538. Here, petitioners failed to show that respondents used the
right-of-way in an unreasonable, unusual, or unnatural way, such that it substantially impaired
petitioners’ right to use and enjoy their own property.
Accordingly, for the foregoing reasons, we affirm the March 11, 2020, order granting
respondents’ motion for summary judgment in petitioners’ nuisance and invasion of property
action.
Affirmed.
ISSUED: June 23, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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