Scott F. Grim, Jeffrey M. Grim, Darnell Fulks, Cindy Fulks, Bryan J. Suter, and Martha J. Suter v. Kathy A. Loub

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
SCOTT F. GRIM, JEFFREY M. GRIM, February 28, 2025
DARNELL FULKS, CINDY FULKS, ASHLEY N. DEEM, CHIEF DEPUTY CLERK
BRYAN J. SUTER, and MARTHA J. SUTER, INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
Plaintiffs Below, Petitioners

v.) No. 24-ICA-142 (Cir. Ct. Tyler Cnty. Case No. CC-48-2023-C-4)

KATHY A. LOUB,
Defendant Below, Respondent

MEMORANDUM DECISION

Petitioners Scott F. Grim, Jeffrey M. Grim, Darnell Fulks, Cindy Fulks, Bryan J.
Suter, and Martha J. Suter (together “Petitioners”) appeal the Circuit Court of Tyler
County’s Order entered March 6, 2024. In that order, the circuit court granted judgment on
the pleadings to Respondent Kathy A. Loub and held that Ms. Loub owned the oil and gas
interest at issue.1 Ms. Loub filed a response in support of the circuit court’s order.
Petitioners filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no abuse of discretion.
For these reasons, a memorandum decision affirming the circuit court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

This case concerns a dispute over one-half of the oil and gas underlying a 121.5-
acre tract of property located in Tyler County, West Virginia (“Subject Property”).
Resolution of this matter turns on interpretation of exception and reservation language
contained in two deeds: the June 30, 1946, deed (“Buck-Eddy Deed”) and the March 5,
1966, deed (“Eddy-Eddy Deed”). Ms. Loub is the daughter of Paul E. Eddy and inherited
his entire estate following his death in 2004, including the alleged interest at stake in this
litigation. Ms. Loub is the successor in interest of the grantors of the Eddy-Eddy Deed. The
interest of the grantees of the Eddy-Eddy deed was subsequently separated into seven
different shares, ownership of which now rests with the Petitioners herein, and the other

1
Petitioners are represented by Christian E. Turak, Esq. Ms. Loub is represented by
Howard M. Persinger, III, Esq.
1
defendants below. Petitioners are the successors in interest of the grantees of the Eddy-
Eddy Deed.
Both deeds contain a metes and bounds description that is largely the same. In regard
to the Buck-Eddy deed, on June 30, 1946, John H. Buck, Noami G. Buck, Delta D. Buck,
Phyllis B. Nichols, Harold M. Nichols, Forrest M. Buck, Mary H. Buck, and Josephine
Buck Kloetzly conveyed by deed to Paul Eddy the Subject Property. That deed contained
the following exception clause:
EXCEPTING AND RESERVING therefrom, however: (1) a right of way
fifteen (15) feet wide extending from the county road across a small portion
of the real estate hereby conveyed to a twenty-three (23) acre and eighty-one
(81) square rod tract of land adjoining the property hereby conveyed on the
West side, which right of way is designated upon the plat hereto attached and
made a part hereof, and (2) one-half (1/2) of all the oil and gas within and
underlying the tract of land hereby conveyed.
The Buck-Eddy Deed then contained a paragraph immediately following the above
paragraph that described the chain of title.
In regard to the Eddy-Eddy deed, on March 5, 1966, Paul E. Eddy and Thelma B.
Eddy conveyed by deed to G. Ralph Eddy and Ethel L. Eddy the Subject Property. That
deed contained the following exception clauses:
EXCEPTING AND RESERVING therefrom, however, a right of way fifteen
(15) feet wide extending from the county road across a small portion of the
real estate hereby conveyed to a twenty-three (23) acre and eighty-one (81)
square rod tract of land adjoining the property hereby conveyed on the west
side, which right of way is designated upon a plat recorded in the office of
the clerk of the county court of Tyler county, West Virginia, and one-half
(1/2) of all the oil and gas within and underlying the tract of land hereby
conveyed and
EXCEPTING from said tract all oil, gas, mining rights, easements and rights
of way conveyed, leased, reserved or excepted by the grantors' predecessors
in title[.]
The Eddy-Eddy Deed then replaces the paragraph in the Buck-Eddy Deed referencing and
describing the chain of title with a paragraph that states:
BEING the same tract conveyed to the grantors by John H. Buck, et al, by
deed dated June 30, 1946[.]

2
The parties to this appeal dispute whether the parties to the Eddy-Eddy Deed
intended to reserve any interest in the oil and gas underlying the Subject Property.
Petitioners assert that the Eddy-Eddy Deed is ambiguous as to whether the parties intended
for Paul E. Eddy and Thelma B. Eddy to reserve any interest in the oil and gas. Ms. Loub
asserts that the Eddy-Eddy Deed unambiguously reserves the remaining one-half interest
in the oil and gas (in addition to the one-half interest separately reserved by the grantors in
the Buck-Eddy Deed).
Petitioners filed their Second Amended Complaint in the Circuit Court of Tyler
County on April 10, 2023, seeking declaratory judgment and to quiet title to the interest in
their favor. On May 1, 2023, Ms. Loub filed her Answer and Affirmative Defenses to
Plaintiffs’ Second Amended Complaint and Counterclaim, opposing Petitioners’ claims
and asserting counterclaims seeking declaratory judgment and to quiet title to the same oil
and gas interest in her favor. On May 18, 2023, Petitioners served their Reply to the
Counterclaims.
On June 2, 2023, Ms. Loub filed a Motion for Judgment on the Pleadings pursuant
to Rule 12(c) of the West Virginia Rules of Civil Procedure. On July 26, 2023, the circuit
court held a hearing on the Motion with counsel appearing in person and submitting oral
argument. Thereafter, on March 6, 2024, the circuit court entered its final order finding
Ms. Loub the sole owner of the one-half interest in the oil and gas at issue. In its order, the
circuit court concluded that the second exception of the Eddy-Eddy Deed refers directly to
all previous reservations of oil and gas rights, which would include the reservation
contained in the Buck-Eddy Deed. Therefore, when read in conjunction with the prior
exception or reservation, it serves to clarify the fact that the first reservation contained in
the Eddy-Eddy Deed refers to the remaining one-half of the oil and gas underlying Subject
Property and is not a mere recitation or “carryover” of the former reservation contained in
the Buck-Eddy Deed. It is from this order that Petitioners appeal.
Our review of a circuit court’s entry of judgment on the pleadings is de novo. Syl.
Pt. 1, Copley v. Mingo Cnty Bd. of Educ., 195 W. Va. 480, 466 S.E.2d 139 (1995). “A circuit
court, viewing all the facts in a light most favorable to the nonmoving party, may grant a
motion for judgment on the pleadings only if it appears beyond doubt that the nonmoving
party can prove no set of facts in support of his or her claim or defense.” Id. at 482, 466
S.E.2d at 141, Syl. Pt. 3.
On appeal, Petitioners assert that the circuit court erred by not viewing the facts in
the light most favorable to Petitioners. We disagree. In Syllabus Point 3 of Faith United
Methodist Church & Cemetery of Terra Alta v. Morgan, 231 W. Va. 423, 745 S.E.2d 461
(2013), the Supreme Court of Appeals of West Virginia (“SCAWV”) succinctly held that
“[d]eeds are subject to the principles of interpretation and construction that govern
contracts generally.” Further, the Faith Court found, at Syllabus Point 7, that “[i]t is not

3
the right or province of a court to alter, pervert or destroy the clear meaning and intent of
the parties as expressed in unambiguous language in their written contract or to make a
new or different contract for them.” Id. In Gastar Expl. Inc. v. Rine, 239 W. Va. 792, 799,
806 S.E.2d 448, 455 (2017), the SCAWV stated that “[w]hen a deed expresses the intent
of the parties in clear and unambiguous language, a court will apply that language without
resort to rules of interpretation or extrinsic evidence.”

Here, when the language of the Eddy-Eddy Deed is examined in its entirety, and
when the two exception clauses are reviewed in conjunction with one another, the only
reasonable reading is that the remaining one-half interest in the oil and gas was reserved to
the grantors. This reading harmonizes all of the parts of the deed. Indeed, this is the only
reading which does not render the second reservation clause, which refers separately to all
prior exceptions contained (which would include that contained in the Buck-Eddy Deed),
completely superfluous. Accordingly, we find this assignment of error without merit.

Next, Petitioners assert that the circuit court erred by finding that the Eddy-Eddy
Deed was not ambiguous. We disagree. Because our reading of the Eddy-Eddy Deed
language harmonizes and gives meaning to all parts of the Eddy-Eddy Deed, it also
precludes a finding that the Eddy-Eddy Deed is ambiguous. Accordingly, we find this
assignment of error without merit.2

2
Petitioners assert that the Eddy-Eddy Deed is ambiguous because it states that the
grantors are conveying “the same tract” that they obtained from the Buck-Eddy Deed,
which would be the surface interest and one-half of the oil and gas. However, such a
reading would render the second exception clause of the Eddy-Eddy Deed meaningless.
Rather, it appears that “the same tract” language is merely the result of customary deed
language included to indicate chain of title as this paragraph in the Eddy-Eddy Deed
replaced a paragraph in the Buck-Eddy Deed that described the grantors chain of title.
Again, such a reading harmonizes all of the parts of the deed.

Petitioners also rely on Griffin v. Toland, No. 22-0459, 2024 WL 2269941 (W. Va.
May 20, 2024) (memorandum decision), in which the circuit court found a deed to be
ambiguous in part because it purported to reserve to the grantors an interest in coal that
they did not own, and the SCAWV affirmed that conclusion. Petitioners assert that the
Eddy-Eddy deed is ambiguous because it purports to reserve in the grantors a right-of-way
already reserved by the Buck-Eddy grantors and which, accordingly, the Eddy-Eddy
grantors could not reserve. However, Petitioners cite no authority for the proposition that
the right of way reserved in the Buck-Eddy Deed should be presumed to be exclusive.
Indeed, the SCAWV has held that the owner of a servient estate has the right to grant
successive easements on the same road. Syl. Pt. 6, Sanders v. Roselawn Mem'l Gardens,
Inc., 152 W. Va. 91, 159 S.E.2d 784 (1968); see Bosley v. Cabot Oil & Gas Corp. of W.
Virginia, 624 F. Supp. 1174, 1177 (S.D.W. Va. 1986).
4
Lastly, Petitioners assert generally that the circuit court erred by entering judgment
in favor of Ms. Loub. Essentially, Petitioners argue that the case should be remanded to the
circuit court so that the parties may develop extrinsic evidence to shed light on the intent
of the parties. Again, we disagree. Having concluded, as the circuit court did, that the first
and second exception clauses of the Eddy-Eddy Deed together make clear that the grantors
of that deed are reserving the remaining one-half interest in the oil and gas not reserved by
the grantors in the Buck-Eddy Deed, it is apparent that remand for development of extrinsic
evidence is unnecessary as the Eddy-Eddy Deed is unambiguous. Accordingly, we find
this assignment of error without merit.

For the foregoing reasons, we affirm the Circuit Court of Tyler County’s order
entered March 6, 2024.

Affirmed.

ISSUED: February 28, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

5