                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                              FILED
                                                                           June 8, 2016
PAMELA JEAN HAYES,                                                           released at 3:00 p.m.
                                                                           RORY L. PERRY, II CLERK
Plaintiff Below, Petitioner                                              SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.) No. 15-0518 (Upshur County Civil Action No. 14-C-123)

LARRY BRADY AND
DAWNA MICHELLE BOONE BRADY,
Defendants Below, Respondents


                              MEMORANDUM DECISION

               Petitioner, plaintiff below, Pamela Jean Hayes (“Ms. Hayes”), appeals from an
order of the Circuit Court of Upshur County, West Virginia, granting the motion of the
Respondents, defendants below, Larry Brady and Dawna Michelle Boone Brady (“the
Bradys”), to dismiss Ms. Hayes’ complaint on grounds that her claims were res judicata.1
The order further denied Ms. Hayes’ motion for relief from judgment in a prior action on
grounds that Ms. Hayes’ allegations in support of the motion were immaterial and thus
insufficient to establish fraud, accident, or mistake.

             This Court has considered the parties’ briefs and oral arguments, as well as the
record on appeal. Upon consideration of the standard of review and the applicable law, 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
Revised Rules of Appellate Procedure.

              On March 13, 2013, Ms. Hayes filed a pro se complaint against the Bradys,
Case No. 13-C-29, seeking injunctive relief. Ms. Hayes alleged that she had a longstanding
right-of-way across the Bradys’ property, which had been blocked by the Bradys, thus
denying her access to her own property. In their answer, the Bradys denied that the
right-of-way in question crossed their property, alleging that “the right-of-way described by
[Ms. Hayes] in her complaint links [Ms. Hayes’] property with the public highway without
going across properties of [the Bradys].”

              1
               Ms Hayes is represented in this appeal by J. Burton Hunter, III. The Bradys
are represented by Trena Williams.

                                             1

                 The parties proceeded with discovery and filed cross motions for summary
judgment, both of which were denied by the circuit court. Ms. Hayes filed a motion to
amend the complaint, which was granted over objection; the amended complaint sought
damages as well as injunctive relief, but did not assert any additional causes of action. On
March 20, 2014, the case was tried to the circuit court on one theory only: that Ms. Hayes’
deed to her property contained a right-of-way across the Bradys’ property, said right-of-way
originally established in a 1924 predecessor deed and contained in every deed thereafter. In
this regard, it should be noted that, although the court had precluded Ms. Hayes from moving
any exhibits into evidence as a sanction for her failure to provide an exhibit list, Ms. Hayes
was not prejudiced because the circuit court took judicial notice of all the deeds in her chain
of title. The Bradys contended that the language in the 1924 deed established nothing more
than a personal license, not a right-of-way.

                At the conclusion of Ms. Hayes’ case-in-chief, the court granted the Bradys’
motion for judgment as a matter of law. In its order entered on September 29, 2014, the
circuit court first quoted the relevant language from the November 7, 1924, deed from W.E.
Boone to Robert Boone:

              The said parties of the first part also reserve the right of egress
              and regress over and through the above described tract of land
              to and from a tract of land now owned by them lying east of this
              tract.

              Painstakingly tracking Ms. Hayes’ chain of title from the 1924 Boone deed
forward, the circuit court found that the first deed to contain any more descriptive language
concerning the “right of egress and regress” was a deed from Gary Samples to Glenn
Samples dated December 1, 1990:

              For the aforesaid consideration, there is further granted and
              conveyed unto the said party of the second part a right of way
              for ingress and egress from the Wilsontown Road to the tract
              herein conveyed over and across the present roadway, said right
              of way being heretofore conveyed to A.M. Samples in a deed
              from Okey Boone, et ux. . . .

The circuit court noted that the exact language in the Samples deed was the language set
forth in Ms. Hayes’ deed, dated June 21, 1994, wherein she purchased the property from
Glenn Samples.

              The circuit court held that Ms. Hayes’ case failed because the language of the

                                              2

1924 deed was insufficient as a matter of law to establish a right-of-way, as it contained no
information as to the location of the right-of-way, its starting or ending points, or its
dimensions; and it had no information as to physical and/or external markers from which
such location could be inferred. “Given the utterly vague and ambiguous description
contained within the deed, there is simply no indication of where the contemplated right of
way once existed or if it is the same right-of-way now sought by [Ms. Hayes].” The circuit
court acknowledged that Ms. Hayes’ deed specifically references a right-of-way from
Wilsontown Road across the present roadway on the Bradys’ property, but held that Ms.
Hayes’ grantor, Glenn Samples, “may not give away that which one does not have.” In short,
Mr. Samples could not expand upon or enlarge the right-of-way originally conveyed from
W. E. Boone to Robert Boone in 1924.

             At the conclusion of its order, the circuit court noted that “this ruling does not
touch upon the issues of presumptive easement and easement by necessity. These issues
were not pled or identified in [Ms. Hayes’] Complaint or Amended Complaint and are not
properly before the Court at this time.”

              Ms. Hayes did not appeal the circuit court’s ruling. Instead, she retained
counsel and, on November 25, 2014, filed a second lawsuit against the Bradys, Case No.
14-C-123, titled “Civil Complaint and Motion for Relief Under Rule 60(b)(1).” In her
complaint, Ms. Hayes alleged that the location of her right-of-way could be established
“through documentary evidence, testamentary evidence, and a view of the property”; that if
Ms. Hayes does not have a right-of-way, she could establish her entitlement to a way of
necessity; and that she was entitled to relief from the judgment in the earlier case, No.
13-C-29, because the court’s decision was based on the Bradys’ mistake or misrepresentation
that “the Wilsontown Road was different than the Salem Ridge Road.” The Bradys filed a
motion to dismiss, alleging that the matters set forth in the lawsuit were barred by the
doctrine of res judicata.

               On April 27, 2015, following a hearing and review of the record in No.
13-C-29, the court granted the Bradys’ motion to dismiss, finding that Ms. Hayes had a full
and fair opportunity to litigate all of her claims in the earlier case and that the claims were
therefore res judicata. The court further denied Ms. Hayes’ motion for relief under Rule
60(b)(1) of the West Virginia Rules of Civil Procedure, finding that the alleged mistake or
misrepresentation by the Bradys at trial “had no impact on the Court’s finding that the
original attempted reservation in the [Boone] deed . . . was insufficient as a matter of law.”




                                              3

This appeal followed.2

              With respect to the circuit court’s ruling on the Bradys’ motion to dismiss,
“‘“[a]ppellate review of a circuit court’s order granting a motion to dismiss a complaint is
de novo.” Syllabus point 3, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194
W. Va. 770, 461 S.E.2d 516 (1995).’ Syl. Pt. 1, Longwell v. Bd. of Educ. Of the Cnty. Of
Marshall, 213 W. Va. 486, 583 S.E.2d 109 (2003).” Syl. pt. 5, Malone v. Potomac
Highlands Airport Auth., No. 14-0849, 2015 WL 5928513, ___ W. Va. ___, ___ S.E.2d ___
(October 7, 2015).

               “The doctrine of res judicata is based on a recognized public policy to quiet
litigation and on a desire that individuals should not be forced to litigate an issue more than
once.” White v. SWCC, 164 W. Va. 284, 289, 262 S.E.2d 752, 756 (1980) (citing Marguerite
Coal Co. v. Meadow River Lumber Co., 98 W. Va. 698, 127 S.E. 644 (1925)). The test to
determine whether a lawsuit may be barred on the basis of res judicata was established by
this Court in Blake v. Charleston Area Medical Center, Inc., 201 W. Va. 469, 498 S.E.2d 41
(1997), wherein we held at Syllabus point 4 that,

                      [b]efore the prosecution of a lawsuit may be barred on
              the basis of res judicata, three elements must be satisfied. First,
              there must have been a final adjudication on the merits in the
              prior action by a court having jurisdiction of the proceedings.
              Second, the two actions must involve either the same parties or
              persons in privity with those same parties. Third, the cause of
              action identified for resolution in the subsequent proceeding
              either must be identical to the cause of action determined in the
              prior action or must be such that it could have been resolved,
              had it been presented, in the prior action.

               In the instant case, the first two elements are beyond dispute; the only question
for resolution is whether the causes of action asserted by Ms. Hughes in Case No. 14-C-123
were identical to those in the earlier case, No. 13-C-29, or were such that they could have
been presented in the earlier case. See, e.g., State ex rel. Small v. Clawges, 231 W. Va. 301,
745 S.E.2d 92 (2013) (finding plaintiffs’ claims should have been raised as a compulsory


              2
               For reasons that are not clear, subsequent to filing his notice of appeal with
this Court on May 22, 2015, Ms. Hayes’ counsel filed a motion for reconsideration with the
court below. The record does not indicate that the court ever acted on this motion, having
no jurisdiction to do so during the pendency of the instant appeal.

                                               4

counterclaim in earlier federal court proceedings and were therefore barred by res judicata
in subsequent state court suit); Beahm v. 7-Eleven, Inc., 223 W. Va. 269, 276, 672 S.E.2d
598, 605 (2008) (observing that, although plaintiffs’ claims of nuisance and trespass had not
been raised in earlier federal court suit, claims nonetheless were barred because “they arose
out of the same core of operative facts as all of the other claims [in the federal suit].”); Syl.
pt. 3, Downing v. Ashley, 193 W. Va. 77, 454 S.E.2d 371 (1994) (Per curiam) (holding, in
part, that res judicata is a bar “not only as to the matters actually determined, but as to every
other matter which the parties might have litigated as incident thereto and coming within the
legitimate purview of the subject-matter of the litigation” (internal quotations and citations
omitted)).

              Ms. Hayes argues that her case falls within one or more exceptions to the
general rule governing application of the doctrine of res judicata. First, she contends that
because “the two cases require substantially different evidence to sustain them, the second
cannot be said to be the same cause of action and barred by res judicata.” White, 164 W. Va.
at 290, 284 S.E.2d at 756. We disagree that Ms. Hayes’ case falls within this exception. All
of the causes of action in the two suits relate to one core issue: does Ms. Hayes have an
enforceable right, whether by virtue of her deed or otherwise, to utilize a private road on the
Bradys’ property in order to access her own property? Regardless of whether some
additional evidence might be required to prove way of necessity or prescriptive easement,
theories of recovery not raised in the first suit, that evidence cannot be fairly said to be
“substantially different” so as to permit Ms. Hayes to hale the Bradys into court to relitigate
the core issue adjudicated in the initial suit. Id.

                Second, Ms. Hayes argues the trial judge in her initial case effectively
foreclosed any res judicata defense in the second case by specifically noting that its “ruling
does not touch upon the issues of prescriptive easement and easement by necessity. . . ,” as
those issues were not pled and were therefore not before the court. This argument requires
little discussion. We do not read the language in the court’s order to be an invitation for Ms.
Hayes to file another lawsuit against the Bradys, let alone a prejudgment of the Bradys’
anticipated defense thereto.

              Third, Ms. Hayes contends that res judicata should not bar her claims in the
second suit because the Bradys were guilty of fraud, mistake, concealment, or
misrepresentation in the initial suit. Specifically, Ms. Hayes claims that the Bradys’ attorney
“proffered”3 to the circuit court, at some point prior to or during the trial, that there were two


               3
                   From the record before us, this Court cannot ascertain the basis upon which
                                                                                  (continued...)

                                                 5

separate roads from which Ms. Haynes could arrange ingress and egress, whereas, in fact,
Salem Ridge Road and Wilsontown Road are one and the same. Had the court understood
this, Ms. Hayes argues, it would have decided the initial case in her favor.4 Again, we
disagree. There is no evidence in the appendix record that the Bradys’ attorney ever made
such a “proffer,” and, even if she had, the existence of the road or roads in question was
wholly irrelevant to the court’s decision, which was based solely on the language in the 1924
deed. In any event, while Ms. Hayes’ “proffer” argument is relevant to the Rule 60(b)(1)
issue, which is discussed in more detail below, it is not relevant to the res judicata issue. As
this Court has noted,

              an exception to the preclusion of claims that previously could
              have been determined exists where the party bringing the
              subsequent lawsuit claims that fraud, mistake, concealment, or
              misrepresentation by the defendant of the second suit prevented
              the subsequent plaintiff from earlier discovering or litigating
              his/her claims.

Blake, 201 W. Va. at 477, 498 S.E.2d at 49 (emphasis added; citations omitted). In the
instant case, Ms. Hayes makes no claim that the evidence she seeks to introduce was
unavailable or unknown to her in the initial case as a result of anything the Bradys did.
Therefore, the alleged “proffer” by the Bradys, even if established, does not bring this case
within the fraud exception to the doctrine of res judicata.

               Fourth, and finally, Ms. Hayes contends that res judicata should not bar her
claims in the second suit because she was a pro se litigant in the initial case and did not have
the skill and expertise to properly present her case. The court below addressed this
contention in his order granting the Bradys’ motion to dismiss and denying Ms. Hayes’ Rule
60(b) motion for relief from judgment:

              3
               (...continued)
Ms. Hayes’ counsel describes these alleged statements as a proffer; the court granted
judgment as a matter of law at the conclusion of Ms. Hayes’ case-in-chief, and, thus, the
Bradys never put on any evidence by proffer or otherwise. See generally State ex rel. Miller
v. Parker, 231 W. Va. 65, 70, 743 S.E.2d 876, 881 (2013) (discussing proffers and collecting
cases).
              4
                 Although it is not entirely clear from either the written or oral arguments of
the parties, it appears that any factual dispute concerning roads is relevant to whether or not
Ms. Hayes’ property is in fact landlocked. In the Bradys’ pleadings in the initial case, they
stated, without explanation, that Ms. Hayes had alternate means of access to her property.

                                               6

                     In the [initial] case, the Court took the necessary steps
              and made reasonable accommodations to ensure that the matter
              was adjudicated on the merits. [Ms. Hayes] presented her
              case-in-chief at trial and attempted to establish that she was
              conveyed an easement over [the Bradys’] property. The Court
              took judicial notice of the deeds associated with [Ms. Hayes’]
              chain of title. The Court cannot instruct [Ms. Hayes] on what
              legal theories to pursue, what witnesses to call, or what
              questions to ask. [Ms. Hayes’] unfamiliarity with legal
              proceedings is a natural risk of proceeding without an attorney.

               Under the facts and circumstances of this case, we agree with the circuit court’s
reasoning. Although it cannot be denied that a pro se litigant is at a disadvantage when
litigating a case against a party represented by counsel, the record in this case does not
support a finding that Ms. Hayes did not have a fair trial in the initial case.

               With respect to the circuit court’s ruling on Ms. Hayes’ Rule 60(b)(1) motion
for relief from judgment, this Court has held that “‘[a] motion to vacate a judgment made
pursuant to Rule 60(b), W. Va. R.C.P., is addressed to the sound discretion of the court and
the court’s ruling on such motion will not be disturbed on appeal unless there is a showing
of an abuse of such discretion.’ Syllabus Point 5, Toler v. Shelton, 157 W. Va. 778, 204
S.E.2d 85 (1974).” Syl. pt. 1, Builders’ Serv. & Supply Co. v. Dempsey, 224 W. Va. 80, 680
S.E.2d 95 (2009).

             The relevant portions of Rule 60(b) of the West Virginia Rules of Civil
Procedure provide that

                    [o]n motion and upon such terms as are just, the court
              may relieve a party or a party’s legal representative from a final
              judgment, order, or proceeding for the following reasons: (1)
              Mistake, inadvertence, surprise, excusable neglect, or
              unavoidable cause . . . (3) fraud (whether heretofore
              denominated intrinsic of extrinsic), misrepresentation, or other
              misconduct of an adverse party. . . .

In this case, Ms. Hayes again claims that the Bradys’ attorney’s alleged proffer with respect
to the existence of two separate roads constitutes mistake, at best, and misrepresentation
and/or fraud, at worst. Further, Ms. Hayes again claims that, absent this mistake,
misrepresentation, and/or fraud, the trial judge would have realized that her property is
landlocked and would have ruled in her favor.

                                               7

                We begin by noting that Ms. Hayes raised her Rule 60(b) claims not by motion,
but by an independent action.5 This Court has held that “[t]he definition of an independent
action as contemplated in W. Va. R. Civ. P. 60(b) is an equitable action that does not
relitigate the issues of the final judgment order or proceeding from which relief is sought and
is one that is limited to special circumstances.” Syl. pt. 2, N.C. v. W.R.C., 173 W. Va. 434,
317 S.E.2d 793 (1984). We also have held:

                      “In order to obtain relief from a final judgment order or
               proceeding through an independent action, the independent
               action must contain the following elements: (1) the final
               judgment, order or proceeding from which relief is sought must
               be one that, in equity and good conscience, should not be
               enforced; (2) the party seeking relief should have a good defense
               to the cause of action upon which the final judgment order or
               proceeding is based; (3) there must have been fraud, accident or
               mistake that prevented the party seeking relief from obtaining
               the benefit of his defense; (4) there must be absence of fault or
               negligence on the part of the party seeking relief; and (5) there
               must be no adequate legal remedy.” Syllabus point 3, N.C. v.
               W.R.C., 173 W. Va. 434, 317 S.E.2d 793 (1984).

Syl. pt. 2, Downing v. Ashley, 193 W. Va. 77, 454 S.E.2d 371.

              Reviewing the facts of this case under the standards set forth in N.C. and
Downing, we conclude that the court below did not abuse its discretion in denying Ms.
Hayes’ request for relief from the judgment entered in the initial case, No. 13-C-29. As
discussed earlier, whether or not Salem Ridge Road and Wilsontown Road were one and the
same was completely irrelevant to the circuit court’s decision, which was based solely on the
language contained in the 1924 deed from W.E. Boone to Robert Boone.6 Under the facts
and circumstances of this case, we conclude that here, as in Downing, “the elements for
proceeding with an independent action are not met. The order below is not unconscionable.

               5
                Rule 60(b) provides, in part, that “[w]rits of coram nobis, coram vobis,
petitions for rehearing, bills of review and bills in the nature of a bill of review are abolished,
and the procedure for obtaining any relief from a judgment shall be by motion as prescribed
by these rules or by an independent action.” (Emphasis added).
               6
               Whether or not the circuit court’s ruling was correct is immaterial, as “[a]n
erroneous ruling of the court will not prevent the matter from being res judicata.” Blake, 201
W. Va. at 477, 498 S.E.2d at 49 (internal quotations and citations omitted).

                                                8

More importantly, the plaintiff failed to appeal the portions of the [2014] order, which she
now raises. This suit cannot be brought in lieu of an appeal to this Court.” 193 W. Va. at
81, 454 S.E.2d at 375 (emphasis added). Further,

                      [t]hese facts not only invalidate the claim as an
               independent action, but also bar this suit under the doctrine of
               res judicata. . . .

                        . . . All issues raised in the case at bar were either
               actually determined by the earlier suit or should have been fully
               litigated, including an appeal to this Court, at that time.

Id. at 81, 454 S.E.2d at 375.

               We decline to address the third issue raised by Ms. Hayes, denial of due
process and equal protection, as her “argument” on this issue consisted solely of typing out
the texts of the Fifth and Fourteenth Amendments to the United States Constitution. Rule
10(c)(7) of the West Virginia Rules of Appellate Procedure requires that,

                      [t]he brief must contain an argument exhibiting clearly
               the points of fact and law presented, the standard of review
               applicable, and citing the authorities relied on . . .[, and] must
               contain appropriate and specific citations to the record on
               appeal[.] The Court may disregard errors that are not adequately
               supported by specific references to the record on appeal.

                 Additionally, in an Administrative Order entered December 10, 2012, “Re:
Filings That Do Not Comply With the Rules of Appellate Procedure,” Chief Justice Menis
E. Ketchum specifically noted that “[b]riefs that lack citation of authority [or] fail to structure
an argument applying applicable law” are not in compliance with this Court’s rules. Further,
“[b]riefs with arguments that do not contain a citation to legal authority to support the
argument presented and do not ‘contain appropriate and specific citations to the record on
appeal, . . .’ as required by rule 10(c)(7)” are not in compliance with this Court’s rules. Here,
Ms. Hayes’ brief is inadequate with respect to the constitutional issue, as it fails to comply
with the Rules of Appellate Procedure and this Court’s Administrative Order. Thus, we
decline to address this assignment of error as it was not properly developed on appeal.

               In summary, we conclude that Ms. Hayes failed to present evidence sufficient
to bring her case within any recognized exceptions to the doctrine of res judicata and that the


                                                9

court below did not abuse its discretion in denying her request for relief under Rule 60(b).
Accordingly, we affirm the judgment of the Circuit Court of Upshur County.

                                                                                        Affirmed.

ISSUED: June 8, 2016

CONCURRED IN BY:
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING AND WRITING SEPARATELY:


Chief Justice Ketchum, dissenting:

               I dissent from the majority’s finding that res judicata bars the plaintiff’s

lawsuit. Her two lawsuits did not allege the “same cause of action” because they involve

completely different evidence. Further, the majority’s strict enforcement of res judicata

plainly defeats the ends of justice.

               In her first lawsuit, the pro se plaintiff asked the court to prohibit the defendant

from blocking the road to her land, one she had used for many years. This first lawsuit was

based on an alleged express easement contained in her deeds. As the majority states: “the

case was tried . . . on one theory only: that [plaintiff’s] deed to her property contained a right­

of-law across the [defendants’] property[.]” (Emphasis added). The plaintiff’s first lawsuit

did not include a claim for an implied easement, i.e., a way of necessity or prescriptive




                                                10

easement. Indeed, the circuit court noted that its ruling against the plaintiff “does not touch

upon the issues of [prescriptive] easement and easement by necessity.”

              In the second lawsuit, the plaintiff sought relief based on an implied easement.

The majority finds this second lawsuit is barred by res judicata. There are two reasons res

judicata does not bar the plaintiff’s second lawsuit:

              1) In Blake v. CAMC, 201 W.Va. 469, 476, 498 S.E.2d 41, 48 (1997), our Court

clearly stated that: “if the two cases require substantially different evidence to sustain them,

the second cannot be said to be the same cause of action and barred by res judicata.”

(Quotations and citations omitted).

              The plaintiff’s first lawsuit only required the interpretation of the deeds in her

chain of title. However, the evidence in her second lawsuit has nothing to do with her chain

of title. The plaintiff’s second lawsuit was based on implied easements, i.e., a prescriptive

easement or way of necessity. Prescriptive easements deal with evidence on how long a party

has used a roadway. Ways of necessity deal with evidence as to the complete lack of access

to a party’s land. Again, neither involve evidence regarding an express easement contained

in a deed.

              2) Blake v. CAMC also makes clear that “even though the requirements of res

judicata may be satisfied, we do not rigidly enforce [this doctrine] where to do so would

plainly defeat the ends of justice.” Id. at 478, 498 S.E.2d at 50 (quotations and citations

omitted).


                                              11

              The plaintiff is being unfairly deprived of a road to her property that she has

used for many years. There are claims that this road is the only access she has to her

property. Justice plainly requires that she be allowed to present evidence of a prescriptive

easement or way of necessity.

              In short, the evidence required to prove the plaintiff’s second lawsuit seeking

an implied easement is completely different from the evidence required to prove an express

easement sought in the first lawsuit. Furthermore, justice requires that the plaintiff be

allowed to submit evidence of an implied easement.

              Therefore, I dissent.




                                             12

