                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Panda Springs, LLC,                                                                FILED
Plaintiff Below, Petitioner                                                       April 12, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 11-1786 (Morgan County 05-C-26)                                        OF WEST VIRGINIA



Wayside, LLC,

Defendant Below, Respondent



                              MEMORANDUM DECISION
       Petitioner Panda Springs, LLC, by counsel Jason P. Foster, appeals the final order of the
Circuit Court of Morgan County, entered December 9, 2011, dismissing the action with
prejudice. The respondent, Wayside, LLC, appears by counsel E. Taylor George.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        The complaint initiating this action was filed on March 11, 2005. It alleges several
causes of action related to a sewage easement on what is called the Panda Springs property. On
appeal, the petitioner argues that the circuit court erred when it improperly “extended” the
easement from one parcel of land to another non-adjacent parcel, both owned by the respondent.
Early in the protracted litigation, the circuit court entered, on July 18, 2006, an “Order Declaring
the Rights of the Parties.” In that order, the court explained that, in 2004, the respondent had
installed a sewage pipe beginning at its own occupied building, crossing the Panda Springs
property, and ending at a modern filtration system on the respondent’s property.1 The terminal
point was more than 100 feet from the occupied building. The court found that the respondent’s
use of the easement comported with the terms of the original deed, and it ordered the case
dismissed from its docket.2 On October 30, 2006, the trial court amended its judgment to reflect

1
  The court noted, though the petitioner now disputes, that prior owners had extended a pipe to a
septic tank on the easement, and that the septic tank distributed into fill lines on what is now the
second Wayside parcel. The court determined that Wayside’s “new construction rectified the
problem of having the septic line improperly extending off the septic easement across the corner”
of the Panda Springs property.
2
   The complaint named a second defendant, Wayside Market, LLC, that is not a party to this
appeal.
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that some issues were not resolved by its order, and stated that adjudication of those issues would
proceed.

        It appears from the record that the respondent lost all interest in the subject property
through foreclosure sale in 2008. Accordingly, by order entered May 13, 2011, the circuit court
granted, in part, the respondent’s renewed motion for summary judgment, denying all requests
for injunctions, specific performance or prospective relief, inasmuch as “the [respondents] no
longer have any ownership or control over the real property which is the subject of this action.”
The court ordered that the case proceed on the question of monetary damages alone. However,
by order dated November 14, 2011, the circuit court granted the petitioner’s “Motion for
Voluntary Dismissal of Remaining Claims.” According to the petitioner’s motion, those included
claims for property damage caused by the sewage pipe installation. Soon thereafter, on
December 9, 2011, the circuit court entered the dismissal order that is the subject of this appeal.

        “‘Courts will not ordinarily decide a moot question.’ Pt. 1, syllabus, Tynes v. Shore, 117
W.Va. 355 [185 S.E. 845] [(1936)]. Syllabus Point 1, State ex rel. Hedrick v. Board of Comm'rs
of County of Ohio, 146 W.Va. 79, 118 S.E.2d 73 (1961).” Syl. Pt. 1, Velogol v. City of Weirton,
212 W.Va. 687, 575 S.E.2d 297 (2002). ““‘Moot questions or abstract propositions, the decision
of which would avail nothing in the determination of controverted rights of persons or property
are not properly cognizable by a court.” Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W.Va.
684, 60 S.E. 873 (1908).’ Syllabus Point 1, State ex rel. Durkin v. Neely, 166 W.Va. 553, 276
S.E.2d 311 (1981)” Syl. Pt. 2, Velogol.

        Inasmuch as the circuit court found—and the petitioner has not disputed—that the
respondent lost its interest in the subject property in 2008, the rendering of a decision in this
controversy would yield no benefit to either party. The petitioner instituted this civil action
seeking to quiet title to the easement, but the respondent is no longer a beneficiary of the grant of
that easement. Furthermore, the respondent is no longer in a position to alter the sewage system
that touches not only the Panda Springs property, but also two parcels now owned by an
unidentified party or parties. The petitioner voluntarily dismissed any claims for damage to its
property, and further review is not required by this Court.

       For the foregoing reasons, we dismiss this appeal as moot.

                                                                                Dismissed as moot.


ISSUED: April 12, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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