                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Joan Phillips,
Respondent Below, Petitioner                                                     FILED
                                                                             November 3, 2017
vs) No. 16-0935 (Kanawha County 07-C-416)                                     EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Wilbur Thaxton II, Petitioner Below, Respondent;

Charles Garrett and Cynthia Garrett,

Respondents Below, Respondents;

City of Charleston, Respondent Below, Respondent


                              MEMORANDUM DECISION

         Petitioner Joan Phillips, pro se, appeals the order of the Circuit Court of Kanawha County,
entered on September 6, 2016, granting Respondent Charles and Cynthia Garrett’s (“the Garretts”)
motion for summary judgment and quieting title to the parties’ respective properties. The Garretts,
by counsel John P. Fuller and Michael W. Taylor, filed a response in support of the circuit court’s
order. Respondent Wilbur Thaxton II (“Mr. Thaxton”), pro se, filed a summary response in
support of the circuit court’s order.1 Respondent City of Charleston (“the City”), by counsel Paul
D. Ellis and Mandi Kay Carter, filed a response in support of the circuit court’s order. Petitioner
filed a reply.

        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
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       Petitioner owns property at 635 Piccadilly Street and the Garretts own property at 633
Piccadilly Street within the Allen Addition subdivision in Charleston, West Virginia. Mr. Thaxton
owns several lots within the subdivision, either through purchases or by adverse possession.
Consequently, Mr. Thaxton filed a petition to quiet title to the subdivision’s various lots in 2007.

        Because Mr. Thaxton named the other property owners as a group rather than individually,
he was allowed to serve them by publication. No other party appeared to oppose Mr. Thaxton’s
petition. Accordingly, by order entered on October 23, 2007, the circuit court granted Mr.

       1
       In his one-page summary response, Mr. Thaxton states that he joins in the Garretts’
arguments.

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Thaxton’s petition to quiet title to the lots to which he claimed title through adverse possession.

        However, in 2009, petitioner filed a motion to set aside the October 23, 2007, order, which
the circuit court granted. Thus, the circuit court allowed petitioner to intervene as a party to oppose
Mr. Thaxton’s petition to quiet title. 2 Thereafter, the Garretts and the City also appeared as
interested parties. Following the discovery that the City owned certain unopened
rights-of-way—existing only on maps of the subdivision—the Garretts filed a motion for
summary judgment on September 8, 2015, on the ground that the other parties could not, through
adverse possession, obtain title to any property owned by the City.3

        The circuit court held a hearing on the Garretts’ motion on September 10, 2015. The parties
discussed a 36-foot unopened right-of-way known as Thomas Street that abuts Mr. Thaxton’s
property on its western border and abuts petitioner’s property and the Garretts’ property on its
eastern border. According to the Garretts, because Thomas Street existed on several maps of the
subdivision, the City owned the land on which their back deck and driveway were located.
Similarly, according to petitioner, if Thomas Street was located where respondents stated that it
was located, her backyard would be substantially shortened. However, petitioner contended that
Thomas Street was not at that location, but that Thomas Street was, in fact, the same right-of-way
as a 26-foot paved utility easement now known as Burr Lane. Identification of Thomas Street as
the same right-of-way as Burr Lane would have moved Thomas Street approximately 40 feet
westward from the place that respondents stated that it was located, to where it would no longer
have encroached upon petitioner’s backyard. The City responded that it maintained ownership of
Thomas Street, but that it was willing to enter into negotiations with each party for their purchase
of that portion of Thomas Street that would give each party title to the land that the party believed
to be theirs.

         At the hearing’s conclusion, the circuit court stated that it would allow the other parties to
file responses to the Garretts’ motion for summary judgment and that, following the filing of those
responses, it would deem the case submitted for decision.4 Petitioner filed her response to the
motion for summary judgment on September 18, 2015. Mr. Thaxton filed a response on September

       2
         At the same time as her motion to set aside the October 23, 2007, order, petitioner also
filed her own petition to quiet title in a separate civil action, Case No. 09-C-331. In its order
granting petitioner’s motion to set aside, the circuit court consolidated Case No. 09-C-331 with the
instant case, Case No. 07-C-416.
       3
         According to petitioner, this case laid dormant for several years prior to the September 8,
2015, filing of the Garretts’ motion for summary judgment. At the September 10, 2015, hearing on
the Garretts’ motion, they indicated that the delay in the case was due to an investigation into
whether the City owned unopened rights-of-way within the subdivision.
       4
        No party objected to the circuit court’s ruling to deem the case submitted for decision
following the filing of responses to the motion for summary judgment.


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25, 2015, which constituted a reply to petitioner’s response. Also, on September 25, 2015,
petitioner filed a pleading, in which she accused Mr. Thaxton of fraudulently using her property to
obtain a loan. Finally, petitioner filed another pleading on September 29, 2015, and attached the
1926 map, which she alleged showed that Thomas Street was the same road as Burr Lane.

        By order entered on September 6, 2016, the circuit court quieted title to the parties’
respective properties. With regard to petitioner’s property and Thomas Street,5 the circuit court
found that (1) as a matter of law, title could not be obtained to a public right-of-way through
adverse possession; (2) the City’s ownership of Thomas Street “is not challenged” by the other
parties; (3) Thomas Street was not the same road as Burr Lane; and (4) the maps of the subdivision
showed Thomas Street at a location that gave the City ownership of substantial portions of
petitioner’s and the Garretts’ backyards. Accordingly, the circuit court ruled that the City owned
Thomas Street and that the other parties owned their properties up to the borders of Thomas Street.

        Petitioner appeals the circuit court’s September 6, 2016, order granting the Garretts’
motion for summary judgment. “A circuit court’s entry of summary judgment is reviewed de
novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Rule 56(c) of the West
Virginia Rules of Civil Procedure provides that summary judgment shall be granted where “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.” In syllabus point 4 of Painter, we held that “[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.” 192 W.Va. at 190, 451 S.E.2d at 756.

       On appeal, petitioner contends that the City does not own Thomas Street. Respondents
counter that petitioner waived this issue because she failed to dispute the City’s ownership of
Thomas Street before the circuit court. We agree with respondents.

         “This Court will not pass on a non[-]jurisdictional question which has not been decided by
the trial court in the first instance.” Watts v. Ballard, 238 W.Va. 730, 735 n.7, 798 S.E.2d 856, 861
n.7 (2017) (quoting Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958)).
Moreover, Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure provides as follows:
“The argument must contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were presented to the
lower tribunal. The Court may disregard errors that are not adequately supported by specific
references to the record on appeal.” Though petitioner filed a reply, she neither responds to the
argument that she failed to dispute the City’s ownership of Thomas Street nor gives a specific
citation that pinpoints when and how she raised the issue with the circuit court. Therefore, we
decline to address the issue for the first time on appeal.

       Because Thomas Street is an unopened right-of-way, it exists only on maps of the
       5
         Because no other party appeals the circuit court’s September 6, 2016, order, we set forth
only those rulings that address petitioner’s property and Thomas Street, the location of which
affects all the parties’ properties.

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subdivision. Respondents argue that the circuit court properly found that, as a matter of law, the
other parties could not obtain title to the land dedicated for Thomas Street through adverse
possession because the City owns it. In Huddleston v. Deans, 124 W.Va. 313, 321, 21 S.E.2d 352,
357 (1942), we found that “[t]he public, immediately upon an offer of dedication, becomes vested
with an interest in the property affected thereby, of which it can take advantage at any time, and
that such rights may not be taken away from the public by adverse possession.” In syllabus point 5
of A & M Properties, Inc. v. Norfolk Southern Corp., 203 W.Va. 189, 506 S.E.2d 632 (1998), we
similarly held that “neither adverse possession, prescriptive easement, nor equitable estoppel may
lie against a public highway.” See also Bauer Enterprises, Inc. v. City of Elkins, 173 W.Va. 438,
442, 317 S.E.2d 798, 801 (1984) (per curiam) (finding that “there can be no adverse possession of
a public way”). Therefore, we conclude that the circuit court properly found that the other parties
could legally not obtain title to Thomas Street through adverse possession.

        With regard to Thomas Street’s location, petitioner contends that the 1926 map of the
subdivision shows that Thomas Street is the same road as the utility easement now known as Burr
Lane, which does not encroach upon her backyard. Respondents counter that, based on a 2008 map
prepared by a certified surveyor and the tax map from the Kanawha County Assessor’s Office,
Thomas Street and Burr Lane are separate rights-of-way and that Thomas Street is located where
the circuit court found that it was. We agree with respondents.

         Based on our review of the three maps, we find that Thomas Street is found at the same
location on all of them. Moreover, the 1940 revision of the 1926 map is also contained in the
record. At the time that the 1940 revised map was prepared, a proposal existed to turn a substantial
part of the subdivision into a cemetery with a portion of Thomas Street being given over to burial
plots. The 1940 revised map does not label Thomas Street as such, but still locates the street at the
same place as do the 1926 map and the two maps that were prepared after the cemetery proposal
fell through. Also, the 1940 revised map shows a 26-foot right-of-way to the west of Thomas Street
that is labelled as the “entrance” to the proposed cemetery, which is the same width as the utility
easement now known as Burr Lane. Thus, we find that the 1940 revision of the 1926 map on which
petitioner relies shows that Thomas Street and Burr Lane are two separate rights-of-way at two
separate locations. Accordingly, we further find that no rational trier of fact could find in
petitioner’s favor regarding Thomas Street’s location. Therefore, we conclude that the circuit court
properly found that the City owns a substantial portion of petitioner’s backyard.6

       For the foregoing reasons, we affirm the circuit court’s September 6, 2016, order granting
the Garretts’ motion for summary judgment and quieting title to the parties’ respective properties.

                                                                                          Affirmed.
ISSUED: November 3, 2017
       6
         As noted previously, at the September 10, 2015, hearing, the City stated that it was willing
to enter into negotiations with petitioner for her purchase of that portion of Thomas Street that
would give petitioner title to the land that she believed to be hers.


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CONCURRED IN BY:

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




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