Hillard and Evelyn Dolin, petitioners, appeal the verdict from a bench trial and subsequent post-trial orders issued by the Circuit Court of Greenbrier County in favor of Timoth and Violet Nunn, respondents. The petitioners challenge the court's decisions, seeking reversal and a new trial. The case arose from a boundary line dispute following the respondents' purchase of adjacent property in 2005, which led them to hire a surveyor who determined the Dolins were encroaching on their land. Despite the Dolins hiring their own surveyor, issues arose regarding the surveyor's completion and subsequent death, leaving no trace of the survey file.
The trial occurred in August 2011, resulting in the court's October 7, 2011, order determining the boundary line. The Dolins filed a motion to alter this ruling, leading to the appointment of the respondents’ surveyor as a special commissioner, who later submitted a "Plat of Survey." Following a December hearing on damages, the court ordered monetary relief for the Nunns on January 30, 2012.
On appeal, the Dolins present twenty-eight assignments of error, many inadequately supported by specific citations to the trial record, which is a requirement under West Virginia appellate procedure rules. The Court found no substantial legal questions or prejudicial errors in the Dolins' arguments, thus deciding that a memorandum decision was suitable without further oral argument.
Judges require clear errors to be demonstrated by appellants, who bear the burden of proof regarding claims of judicial mistakes (State v. Kaufman). A trial court's judgment will not be reversed unless an error is affirmatively evident in the record. Issues not addressed in an appellant's brief are waived (Damron v. Haines). In this case, petitioners argued ten assignments of error, with the first concerning the exclusion of a survey by deceased surveyor William E. Dilley. Respondents maintained the exclusion was justified due to the survey's unreliability and the absence of supporting documentation, referencing McGuire v. Walker. Evidentiary rulings are reviewed under an abuse of discretion standard, and the court found no abuse in excluding Dilley’s survey.
The second claim involved a supposed denial of a jury trial request by the circuit court. Respondents contended that no written demand for a jury trial was ever made by petitioners, per Rule 38(b) of the West Virginia Rules of Civil Procedure, which requires such a demand within ten days of the last pleading. The absence of a jury trial demand meant the trial court acted correctly in not denying a request that was never made.
Petitioners also argued the circuit court erred in admitting character evidence against Mr. Dolin, related to alleged bullying and land disputes. However, petitioners did not object to this evidence during the trial, thus failing to preserve the argument for appeal, as litigants cannot raise silent acquiescence as grounds for reversal (Maples v. W.Va. Dep’t of Commerce).
Silence by the petitioners during the trial has been deemed a waiver of their objections to alleged errors, consistent with the precedent established in State v. Grimmer. The petitioners did not object to the circuit court's determination that the construction of a fence was not done under color of right, despite being aware of a survey indicating that part of the fenced land belonged to the respondents. The court's review of mixed questions of law and fact suggests that the trial court's findings regarding the fence were acceptable and not clearly erroneous.
Further, the petitioners challenge the court's findings that transferred culpability from Mr. Dolin to all petitioners and that he attempted to conceal previous litigation. The respondents assert that only Mr. and Mrs. Dolin are petitioners and that Mr. Dolin admitted to hiding prior litigation. Based on relevant standards, the court's conclusions on these matters were upheld.
Petitioners also argue against the court's ruling that their engagement of an attorney constituted vexatious conduct, claiming their right to legal representation. The court found instances of vexatious behavior by the petitioners, and this finding was not deemed clearly erroneous.
In addressing the petitioners' claims regarding the circuit court's factual findings in its October 7, 2011, order on boundary lines, the petitioners assert ownership of four tracts instead of two. The court employs a two-pronged deferential standard for reviewing such findings, leading to the conclusion that the circuit court's factual determinations were not clearly erroneous. Lastly, the petitioners’ sixth assignment of error concerns the denial of their request to amend a preliminary ruling, which was also affirmed.
The circuit court denied the petitioners’ motion for a new trial. The Court reviews such rulings under an abuse of discretion standard, while factual findings are assessed for clear error, and legal questions are reviewed de novo. The Court found no abuse of discretion in the circuit court's decision to deny the new trial.
The petitioners argued that the circuit court erred in shifting attorney’s fees and costs to them and in awarding punitive damages. The respondents contended that the petitioners' actions justified these assessments. The circuit court provided sufficient factual support for its decisions, which are generally granted wide discretion in determining attorney's fees and costs. The Court affirmed that no abuse of discretion was shown regarding the award of attorney’s fees and costs.
In addressing the punitive damages, the Court noted a two-step process: first, determining if the conduct warranted punitive damages, and second, assessing whether the amount awarded was excessive. The Court concluded that the trial court's decision to award punitive damages was justified and the amount was not excessive. Therefore, the lower court's decisions were upheld, and the ruling was affirmed.
