                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


William L. Hubbard,
Bonnie Zelic,                                                                         FILED
Bradley L. Hubbard,                                                                 May 23, 2016
John Paul Smith Jr.,                                                               RORY L. PERRY II, CLERK
Defendants Below, Petitioners                                                    SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA

vs) No. 15-0693 (Marshall County 12-C-87)

Joseph L. Crow Jr.,
Plaintiff Below, Respondent


                              MEMORANDUM DECISION
        Petitioners William L. Hubbard, Bonnie Zelic, Bradley L. Hubbard, and John Paul Smith
Jr., by counsel David C. White, appeal the Circuit Court of Marshall County’s June 16, 2015,
order ruling in respondent’s favor and striking the matter from the circuit court’s active docket.
Respondent Joseph L. Crow Jr. made no appearance with this Court. On appeal, petitioners
allege that the circuit court violated their due process rights by granting summary judgment for
respondent without proper notice.

       After a careful review of the appendix record submitted on appeal, the written arguments
of counsel, and the applicable precedent, this Court determines that the circuit court erred by sua
sponte granting summary judgment for respondent in the absence of any motion and without
proper notice to petitioners. Because our decision in this matter is dictated by well-settled law,
we conclude that this case satisfies the “limited circumstances” provision in Rule 21(d) of the
Rules of Appellate Procedure for reversal and remand in a memorandum decision. As such, by
this memorandum decision, we reverse and remand the circuit court's June 16, 2015, order.

        Respondent herein filed a civil action regarding a property line in dispute with petitioners
in April of 2012. The circuit court held a status conference on June 2, 2015, during which
petitioners’ counsel

       informed [the circuit court] that their expert surveyor . . . did not perform a survey
       of the contested property and/or property line in dispute as it was their opinion
       from looking at the deed, prior surveys of the area and the survey of
       [respondent’s] expert . . . that same accurately identified, portrayed and marked
       the property and/or property line in dispute as being owned by [respondent],
       Joseph L. Crow.

The circuit court further noted that petitioners’ counsel represented that its expert witness would
be unable to render an opinion contrary to that of respondent’s expert witness and that, as a

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result, petitioners “had no expert opinion to rely upon in this matter.” As such, the circuit court
ruled that the petitioners’ camper and utility pole were located on respondent’s property and that
they had thirty days to remove the same. The circuit court further struck the matter from its
docket. It is from this order that petitioners appeal.

        We have previously held that “[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). On appeal,
petitioners argue that respondent filed no motion for summary judgment prior to this hearing and
that the circuit court, on its own motion, ruled in respondent’s favor.1 According to petitioners,
the circuit court’s ruling violated their due process rights because of the lack of notice regarding
the award of summary judgment. Upon our review, the Court agrees that it was error for the
circuit court to, in essence, grant summary judgment for respondent when no such motion had
been filed and petitioners lacked notice of such a ruling.

        We have previously stated that “‘[o]rdinarily, in the absence of a written motion for
summary judgment by one of the parties, the court is not authorized sua sponte to grant a
summary judgment.’ Syllabus Point 2, Gavitt v. Swiger, 162 W.Va. 238, 248 S.E.2d 849 (1978).”
Syl. Pt. 2, Hanlon v. Boone Cty. Cmty. Org., Inc., 182 W.Va. 190, 386 S.E.2d 847 (1989).
Moreover, we have held that

              [a]s a general rule, a trial court may not grant summary judgment sua
       sponte on grounds not requested by the moving party. An exception to this
       general rule exists when a trial court provides the adverse party reasonable notice
       and an opportunity to address the grounds for which the court is sua sponte
       considering granting summary judgment.

Syl. Pt. 4, Loudin v. Nat’l Liab. & Fire Ins. Co., 228 W.Va. 34, 716 S.E.2d 696 (2011). In this
matter, not only had respondent failed to move for summary judgment on the specific grounds
upon which the circuit court based its decision, respondent had not moved for summary
judgment at all. Further, the specific facts of this case do not support a finding that the exception
to this rule was satisfied, as the record is devoid of any evidence that petitioners were aware the
circuit court was considering granting summary judgment, let alone that they were offered an
opportunity to address the grounds in an effort to overcome a granting of summary judgment.

        For the foregoing reasons, the circuit court’s June 16, 2015, order ruling in respondent’s
favor is hereby reversed and the matter is remanded with direction for the circuit court to provide
petitioners the opportunity to address the grounds upon which the circuit court granted summary
judgment.




       1
         Indeed, the docket sheet for this matter does not reflect any motion for summary
judgment having been filed. Although the docket sheet was not included in the appendix on
appeal, Rule 6(b) of the West Virginia Rules of Appellate Procedure states that “[t]he Court,
upon its own motion, may consider portions of the record other than those provided by the
parties.”
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                                       Reversed and Remanded.

ISSUED: May 23, 2016

CONCURRED IN BY:

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




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