                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Vira Rose,
Plaintiff Below, Petitioner                                                       FILED
                                                                              January 19, 2018
vs) No. 17-0205 (McDowell County 14-C-25-M)                                   EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
The West Virginia Division
of Homeland Security and
Emergency Management,
Defendant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Vira Rose (“Ms. Rose”), by counsel Jerome McFadden, appeals the order of
the Circuit Court of McDowell County, entered on February 3, 2017, granting Respondent West
Virginia Division of Homeland Security and Emergency Management’s (“the Division’s”)
motion for summary judgment. The Division appears by counsel Gary E. Pullin.

       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 affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

         Ms. Rose filed a complaint in the Circuit Court of McDowell County asserting that the
Division damaged her property by dismantling a radio tower and damaging a transmission
building that she claimed to own. During discovery, she executed affidavits explaining that she
learned in February of 2012 that the tower “had been torn down” and that wires for the tower had
been deliberately cut. Ms. Rose stated that she was a former excavator operator, and it was her
opinion that an excavator pulled the tower down. Ms. Rose further asserted that after she found
the tower grounded, she began inquiring what happened to it, and her inquiries led her to believe
that an electronics technician employed by the Division dismantled the tower, a fact that she
asserts the technician admitted to her. Ms. Rose states that the technician later told her the tower
fell in a storm.

        A building that once served as an office and studio for a radio station sits on Ms. Rose’s
land; however, she does not own the adjacent parcel on which the tower and transmission
building are located. She entered into a lease with Pocahontas Land Company (“PLC”) in 2000
for the land on which the tower and transmission building were located. According to the terms



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of the lease, Ms. Rose, for $400 per year, had “the right of using only for the purposes of
operating, maintaining and removing an antenna and transmitter site. . . .” The lease provided in
part:

       Upon failure of Lessee to pay said rent or perform or observe any other of the
       terms and provisions hereof for a period of ten (10) days, Lessor may terminate
       this lease and reenter the leased premises and eject Lessee there from and hold the
       same as of its former estate without prejudice to any other legal or equitable
       remedy for collection of rent or breach of covenant.

The lease also provided:

       In the event Lessee ceases to use the premises for any of the purposes of this lease
       for a period of ten (10) days then this lease shall be considered abandoned and
       said premises shall revert to Lessor as of its former estate and Lessor may reenter
       and take possession of same without any notice whatsoever or any other
       proceeding being necessary.

        Ms. Rose did not operate a radio station, though she applied for a license to operate a
radio station several times prior to 2005. She did not make lease payments after 2002. A land
agent for PLC wrote petitioner a letter dated August 22, 2011, informing her that she was in
arrears in the amount of $3200. He also advised that the lease was terminated for nonuse of the
premises and that Ms. Rose had ten days to “remove said tower and appurtenances from the
premises.” Ms. Rose did not claim the letter, and she stated in an affidavit that the letter was not
sent to the address that she provided to PLC. However, the PLC land agent testified that he saw
Ms. Rose sometime in the first three months of 2012, and advised her that the lease had been
terminated.

       The Division filed a motion for summary judgment, arguing that Ms. Rose lacked
standing because she had no interest in the damaged property, and that Ms. Rose had produced
no evidence showing that the Division had damaged her property. By order entered on February
3, 2017, the court granted the motion upon finding that petitioner had abandoned the lease and
lacked standing to bring the action. This appeal followed.

        On appeal, Ms. Rose asserts two assignments of error. First, she argues that the circuit
court erred in granting the Division’s motion for summary judgment because there remained
questions of material fact concerning her lease interest and whether forfeiture was appropriately
executed. Second, she argues that the circuit court erred in granting summary judgment “sua
sponte” on the question of whether she had an ownership interest in the tower and transmission
building, inasmuch as those structures were “fixtures” belonging to her because they were
connected to the building on her own property by a cable. In turn, the Division asserts a cross-
assignment of error, arguing that the circuit court failed to address its argument and grant
summary judgment on the ground that Ms. Rose failed to make a prima facie showing that any
damages were caused by respondent. These issues are before us pursuant to the circuit court’s
grant of summary judgment, and our review is de novo. Syl. Pt. 1, Painter v. Peavy, 192 W. Va.
189, 190, 451 S.E.2d 755, 756 (1994).

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        With respect to both of Ms. Rose’s assignments of error, we agree with the circuit court
that Ms. Rose acquired no ownership interest in the radio tower or transmission building, and
that any interest she may have had was abandoned because, at the least, she failed to make lease
payments after 2002. Ms. Rose argues that she was entitled to ten days’ formal notice of
forfeiture; however, it is undisputed that Ms. Rose had made no lease payments for
approximately a decade prior to the damage of the tower and transmission building and it is
undisputed that she did not operate the transmission site. The lease agreement clearly provided
that under either of these scenarios—either failing to make lease payments or failing to use the
property as specified—the lease could be terminated after ten days. If terminated for nonuse, the
lease provided that no notice was required. The ten years that Ms. Rose failed to make lease
payments, together with the time that Ms. Rose failed to use the property, was more than
sufficient under the circumstances presented here to support the circuit court’s finding of
abandonment.

        Having resolved the issues presented in Ms. Rose’s assignments of error as set forth
above, we need not discuss at length the Division’s cross-assignment of error, in which the
Division asserts that the circuit court failed to address its argument that Ms. Rose presented no
evidence showing that the Division was responsible for the structural damage. However, we note
that Ms. Rose did not respond to this assignment of error. Rule 10(d) of the West Virginia Rules
of Appellate Procedure provides that a respondent’s brief must specifically respond to each
assignment of error, and that the failure to do so may result in the Court’s assumption that
“respondent agrees with the petitioner’s view of the issue.” Rule 10(d) also requires that a
respondent’s brief conform to Rule 10(c), which describes the required presentation of the
petitioner’s brief. Our rules ensure fairness, and must be followed by each respective party.
Though we do not find that the circuit court erred in not reaching this issue, we agree with the
Division that summary judgment would have been appropriate on this ground.

        For the foregoing reasons, we affirm.

                                                                                       Affirmed.

ISSUED: January 19, 2018

CONCURRED IN BY:

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




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