        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



                                       V.



                       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.”

                                                1

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.



                                               I.


                      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.

                                               2

              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


                                               3

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


                                                 4

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.

                                                5

                      [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

                                                6

              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).




                                              7

              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.

                                               8

                     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

                                              9

                      [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.

                                                10

(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

                                             11

                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

                                               12

              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


                                              13

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.




                                               14

