Coffman v. Shafer

         IN THE WEST VIRGINIA SUPREME COURT OF APPEALS

                      September 1991 Term

                         _____________

                           No. 19878

                               ^^^^^

                         _____________

          FRANK H. COFFMAN, II, AND CAROL S. COFFMAN,

                          Appellants

                              V.

                        FRED H. SHAFER,

                           Appellee

 ____________________________________________________________

        Appeal from the Circuit Court of Kanawha County

                   Honorable John Hey, Judge

                  Civil Action No. 88-C-4009

                     REVERSED AND REMANDED

 ____________________________________________________________

                Submitted:  September 25, 1991

                   Filed:  December 18, 1991

Douglas B. Hunt, Esq.

J.C. Powell

Charleston, West Virginia

Attorney for the Appellants

Jack O. Friedman, Esq.

Charleston, West Virginia

Attorney for the Appellee

The Opinion of the Court was delivered PER CURIAM.

                     SYLLABUS BY THE COURT

              "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law."  Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963).

Per Curiam:

              Frank H. Coffman, II and Carol S. Coffman appeal the

dismissal of their complaint as barred by the statutes of

limitation.  Mr. and Mrs. Coffman's complaint, filed on November 9,

1988, alleges that Fred H. Shafer, the developer of the Beech Road

and Honeysuckle Road subdivision located near Elkview, Kanawha

County where Mr. and Mrs. Coffman purchased a lot in 1978 (the

subdivision), has failed to provide either an adequate water system

or an adequate road system and has breached the restrictive

covenants by permitting trailers to be placed in the subdivision.

Mr. Shafer filed a motion for summary judgment alleging that Mr.

and Mrs. Coffman's complaint was barred by the applicable statutes

of limitation.  The Circuit Court of Kanawha County found that Mr.

and Mrs. Coffman's complaint was based upon oral and written

contracts and, therefore, was barred by the applicable statutes of

limitation.  We find that summary judgment should not have been

granted because there are genuine issues of material fact, and,

therefore, we reverse the circuit court and remand the case for

further proceedings.

              In 1978, Mr. and Mrs. Coffman, who had been renting a trailer from Mr. Shafer, purchased the lot next to their rented

trailer from Mr. Shafer for $6,000.  The deed contains restrictive

covenants prohibiting trailers or mobile homes in the subdivision

and requiring the subdivision's residences to cost not less than

$20,000.  Mr. Shafer supplied water to Mr. and Mrs. Coffman's

trailer by extending his own water line.  After Mr. and Mrs.

Coffman built their home, Mr. Shafer continued to supply water by

extending his own water line.  As other persons moved into the

subdivision, Mr. Shafer also supplied them with water from his own

line and billed each household for the water consumed.

              When Mr. and Mrs. Coffman purchased their lot, the

subdivision road was gravel.  In 1987, Mr. Shafer sought approval

of the subdivision from the Kanawha County Planning Commission and

in 1988 some of the road was paved.  

              In 1988, Mr. and Mrs. Coffman and other subdivision

residents filed a formal complaint with the West Virginia Public

Service Commission.  A hearing was held on April 17, 1989 and the

Public Service Commission staff recommended that Mr. Shafer be

ordered to stop acting as a public utility and that each lot owner

bear the cost of connecting to the West Virginia American Water

Company.  As of December 10, 1991, there was no final ruling from

the Administrative Law Judge for the Public Service Commission.

              On November 9, 1988, Mr. and Mrs. Coffman filed a

complaint alleging that Mr. Shafer had failed to provide an

adequate water system or adequate road system and had violated the

restrictive covenants.  Mr. Shafer's motion for summary judgment

alleges that: (1) the Coffmans' water system complaints are based

on a oral promise made in 1978, on which the five year statute of

limitation has run; (2) the Coffmans' road system complaints are

unjustified because they were based on a violation of county

subdivision regulations which existed when the property was

purchased; and (3) the Coffmans' restrictive covenant complaints

are based on a written contract, on which the ten year statute of

limitation has run.  By order dated October 3, 1989, the circuit

court found that the complaint was barred by the applicable five

and ten year statutes of limitation, granted Mr. Shafer's motion

for summary judgment and dismissed the complaint.

              On appeal, Mr. and Mrs. Coffman maintain: (1) because their water system allegations are based on a continuous injury, the five year statute of limitation has not expired; (2) because of the continuous violation of the county subdivision rules requiring paved subdivision roads, the five year statute of limitation has not expired; and (3) because the right to sue under the restrictive covenants did not accrue until 1981 when Mr. Shafer allowed a new

trailer in the subdivision, the ten year statute of limitation for

written contracts has not expired.  Based on the information in the

record, we find that the circuit court's order holding that Mr. and

Mrs. Coffman's complaint is barred by the applicable statutes of

limitation is not justified.  Therefore, we reserve the circuit

court and remand the case for further proceedings.

                               I

              The question to be decided in reviewing a summary

judgment order is whether a genuine issue as to any material fact

exists.   As this Court said in Syllabus Point 3, Aetna Casualty

& Surety Co. v. Federal Ins. Co of N.Y., 148 W. Va. 160, 133 S.E.2d

770 (1963):  

           A motion for summary judgment should be

         granted only when it is clear that there is no

         genuine issue of fact to be tried and inquiry

         concerning the facts is not desirable to

         clarify the application of the law.

In determining on review whether there is a genuine issue of

material fact between the parties, this Court will construe the

facts "in a light most favorable to the losing party."  Masinter v.

WEBCO Co., 164 W.Va. 241, 242, 262 S.E.2d 433, 435 (1980).  Because

summary judgment forecloses trial on the merits, this Court does

not favor the use of summary judgment where factual development is

necessary to clarify application of the law.  Lengyel v. Lint, 167

W. Va. 272, 281, 280 S.E.2d 66, 71 (1981).

              Because Mr. and Mrs. Coffman's complaint alleges that Mr. Shafer, the developer of their subdivision, failed in three areas, we next examine each of the areas to see if the dismissal of that part of the complaint is justified by the applicable statute of limitation.  

                                         A

              The major allegations of Mr. and Mrs. Coffman's complaint concern Mr. Shafer's failure to develop an adequate water system for the subdivision.  Mr. and Mrs. Coffman maintain that the lack

of an adequate water system resulted in repeated or continuous

damages because new subdivision residents were added to Mr.

Shafer's private water line and each addition further burdened the

inadequate system.  Based on the repeated injury of each addition,

Mr. and Mrs. Coffman maintain that the statute of limitations

begins to run from the date of the last injury, the last addition

to the system, rather than from 1978, the date of the purchase of

their property.

                                   We have recognized that the statute of limitations

begins to run with the last date of injury where a continuous or

repeated injury occurs.  In Greer Limestone Co. v. Nestor, 175

W. Va. 286, 332 S.E.2d 589 (1985), we held that partial payments on

an open account, tolled the statute of limitation for a creditor's

action.  In Handley v. Town of Shinnston, 169 W. Va. 617, 289

S.E.2d 201, 202 (1982), we found that the damage from a water leak

"did not occur all at once but increased as time progressed; each

injury being a new wrong."  See also Hoover-Dimeling Lumber Co. v.

Neill, 77 W. Va. 470, 87 S.E. 855 (1916) (discussing actions that

imply promises to pay an account).  

              In addition to maintaining that each new addition was a

new injury, Mr. and Mrs. Coffman maintain that each attempt by Mr.

Shafer to update or maintain the water system implied a new promise

to provide adequate water.  The record indicates that Mr. Shafer

installed water lines, individual meters and a pump to provide

water to the subdivision.  Mr. Shafer also billed the subdivision

households monthly and, if payment was not received, cut off

service.  

              Mr. Shafer maintains that the Coffmans' allegations

concerning the water system are based on an oral promise he

allegedly made in 1978 when the Coffmans purchased their property.

Because the water system section of the complaint is based on an

oral promise, Mr. Shafer alleges that the action is barred by the

five-year statute of limitations.

              We find that there is a genuine issue of material fact

between the parties concerning when the injury occurred that

triggered the running of the statute of limitation.  In addition,

we cannot determine when the injury occurred because of the lack of

information concerning the following: (1) whether the addition of

new subdivision households was a new injury; or (2) whether Mr.

Shafer's maintenance of or updates to the water system were new

implied promises to provide an adequate water system; and (3) when

the various acts at issue in this case occurred.

                               B

              Mr. and Mrs. Coffman allege that the part of their

complaint concerning the subdivision's road system is based on Mr.

Shafer's violation of the Kanawha County Planning Commission's

regulation that requires a paved 35 foot right-of-way for

subdivision roads.  The Coffmans maintain that they have a cause

of action for damages under W. Va. Code, 55-7-9 [1923], which

provides:

           Any person injured by the violation of any

         statute may recover from the offender such

         damages as he may sustain by reason of the

         violation, although a penalty or forfeiture

         for such violation be thereby imposed, unless

         the same be expressly mentioned to be in lieu

         of such damages.

              Mr. Shafer maintains that because the alleged violation

existed when the Coffmans purchased their property, this part of

the complaint is barred under W. Va. Code, 55-2-12 [1959], see

infra note 4, which establishes a two year statute of limitation

for an action because of damages to property.  

              Mr. Shafer also notes that Jenkins v. J. C. Penney

Casualty Insurance Co., 167 W. Va. 597, 280 S.E.2d 252 (1981),

requires that a direct action based on a statutory claim be delayed

pending the resolution of the underlying suit.  Mr. Shafer

maintains that the matter is still pending before the Planning

Commission.

              Again we find a genuine issue of material fact is

disputed by the parties and that the record is insufficient to

justify the award of summary judgment for this section of the

complaint.  We cannot determine if the matter is still pending

before the Planning Commission or, what action, if any, has

occurred.  The record is simply insufficient.

                               C

              Finally, Mr. and Mrs. Coffman maintain that their claims

concerning the violations of the restrictive covenants are not

barred by the ten year statute of limitation for written contracts,

W. Va. Code, 55-2-6 [1923], see infra note 4, because the first

violation of the restrictive covenants occurred in 1981 when Mr.

Shafer permitted a new trailer to be placed on the lot next to

their house. However, Mr. Shafer alleges that because the trailer

the Coffmans had rented was already on the property next to the

Coffmans' property, when the Coffmans purchased their property, the

statute of limitation for the restrictive covenants began to run

when the Coffmans purchased their property.  Mr. Shafer also

alleges that only the Coffman's property is subject to the

restrictive covenants.

              Again we find that the record is insufficient to justify

the grant of summary judgment dismissing this section of the

Coffman's complaint.  We noted that the parties disagree concerning

when the first violation of the restrictive covenants occurred.

The Coffmans maintain that the restrictions applied to future acts

and Mr. Shafer maintain that the restrictions applied to the

existing conditions.  However, no deeds were included in the record

and, therefore, we are unable to address the parties disagreement

about effect of the restrictive covenants on the subdivision.  

                                  Based on the above stated reasons, we reverse the order

of the circuit court and remand the case for proceedings consistent

with this opinion.

                                                                                                                                           Reversed and remanded.

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This system is : TechNet

This user is : connie        

topic no 11 Topic Name : 1991 Fall

current date  Mon Jul  8 09:33:10 1996

Entry # : 756  prepared Sep  3 14:26:33 1993

Author : Admin

Subject :Frank H Coffman II & Carol Coffman v Fred H Shafer

CC : 6

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