Bradley A. Reed v. P. Todd Phillips

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
Spring 2026 Term
February 24, 2026
_____________________ released at 3:00 p.m.
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
No. 24-ICA-455 OF WEST VIRGINIA

_____________________

BRADLEY A. REED,
Plaintiff Below, Petitioner,

v.

P. TODD PHILLIPS,
Defendant Below, Respondent.

___________________________________________________________

Appeal from the Circuit Court of Monongalia County
Honorable Perri J. DeChristopher, Judge
Civil Action No. CC-31-2022-C-124

AFFIRMED
_________________________________________________________

Submitted: January 13, 2026
Filed: February 24, 2026

Michael D. Crim, Esq. Melvin F. O’Brien, Esq.
Crim Law Office, PLLC Michelle D. Baldwin, Esq.
Clarksburg, West Virginia Dickie, McCamey & Chilcote, L.C.
Counsel for Petitioner Wheeling, West Virginia
Counsel for Respondent

JUDGE WHITE delivered the Opinion of the Court.
WHITE, JUDGE:

Petitioner Bradley A. Reed appeals from the October 18, 2024, order of the

Circuit Court of Monongalia County granting summary judgment in favor of Respondent

P. Todd Phillips, who was the defendant in this legal malpractice action. According to Mr.

Reed, his attorney, Mr. Phillips, was negligent in failing to raise grandfathering as a defense

to a notice of violation issued by the Town of Beverly alleging that Mr. Reed violated the

2015 International Property Management Code (“IPMC”) in connection with his operation

of a service station and garage. For reasons stated below, we affirm the judgment of the

circuit court.

I. FACTUAL AND PROCEDURAL HISTORY
Mr. Reed purchased the Marathon service station and garage located in the

town of Beverly, West Virginia (the “Town”) in 2003. At the time, the property was subject

to a 1988 Litter Ordinance, which provided in Section 12A: “No person … shall allow

any… junked, discarded or otherwise nonoperating motor vehicle to remain on such

property longer than ten days; . . . except that this section shall not apply with regard to any

vehicle in an enclosed building or so located upon the premises as not to be readily visible.”

Section 12A also stated that

[t]his ordinance shall further not apply with regard to any
vehicle on the premises of a business enterprise operated in a
lawful place, other than in a residential district, and operated in
a lawful manner, when the keeping or maintenance of such

1
vehicle is necessary to the operation of such business
enterprise.

(Emphasis added).

Mr. Reed regularly kept inoperative vehicles on his property, which were not

enclosed and were clearly visible from surrounding properties. Mr. Reed contends that this

use of his property was necessary for the operation of his business and was therefore lawful

under the 1988 Litter Ordinance.

By letter dated July 26, 2006,1 the Town’s attorney advised Mr. Reed that

his service station was in violation of the town’s litter ordinance, noting that the property

looked like a salvage yard, with truck beds, “junked” cars, used car parts, tires, and oil/fuel

lying about, and that the condition of the property posed “a potential health hazard.”2 The

Town’s attorney called Mr. Reed’s attention to the 1988 Litter Ordinance 3, which stated

1
Petitioner’s brief incorrectly states that this letter was written in “late 2007.”
2
According to the letter:

… the “junk” around your station poses a potential health hazard. The
potential for rats and other “unwelcome” animals to make residence in the
stockpiled vehicles concerns the adjacent landowners. Further, the stockpile
of used parts, tires, and what appears to be motor oil/fuel is a concern for the
residents of Beverly because [any] potential run-off could affect the small
stream that runs in the vicinity under the road and into the Tygart River.
3
Petitioner’s brief states that this letter was based on alleged violations of a 2007
ordinance, but the letter was written before the 2007 ordinance was passed, so it must have
been referring to the 1988 Litter Ordinance.
2
that inoperative vehicles could not be kept on the property for more than ten days, unless

they were kept in an enclosed building, or were not readily visible from surrounding

properties. The letter directed Mr. Reed to remove or enclose the nonoperating vehicles

and parts located on his property, and to “clean up your premises in compliance with the

Town’s litter ordinance,” by August 26, 2006, or he would be fined for each day on which

the violations continued. This deadline was later extended to September 30, 2006, and Mr.

Reed was again advised by the town’s attorney that he would be fined $100 per day for

each day after that date that he was not in compliance with the 1988 Litter Ordinance.

On October 11, 2006, the Town council found Mr. Reed to be in violation of

the 1988 Litter Ordinance and summoned him to appear at their meeting in November to

show cause why he should not be found in violation of the litter ordinance. If he failed to

appear at that meeting, a lien would be placed on his property equal to $100 for each day

he was in violation. The record on appeal does not indicate whether Mr. Reed appeared at

this meeting or if a lien was placed on his property.

On or about October 10, 2007, the Town adopted a new ordinance which

defined “Litter” to include, among other things, “motor vehicle parts, [and] junked and/or

abandoned vehicles…” Additionally, Section 12B of the 2007 Litter and Property

Maintenance Ordinance (“2007 Litter Ordinance”) allegedly stated: “Exterior storage of

other vehicles. Any vehicles parked or stored within the town limits must be currently

3
licensed and currently state inspected.”4 The 2007 Litter Ordinance did not contain a

grandfather clause, and neither party contends that Mr. Reed’s use of his property would

have been lawful under the 2007 Litter Ordinance without grandfathering.5

By letter dated April 21, 2008, the Town’s attorney advised Mr. Reed that he

violated the Town’s 2007 “Property and Litter Management Ordinance [sic]6 and the

Zoning Ordinance” and that if he did not correct various violations listed in the letter within

thirty days, the Town would file a lawsuit against him and his business. The letter observed

that Mr. Reed had been “provided with several opportunities to do so in the past and at

times, you have made an effort to comply, however, you have recently fallen back to your

earlier non-compliance with the ordinances of the Town of Beverly.” In the letter, the Town

listed several corrective actions required to bring the property into compliance, including

the removal of unlicensed vehicles from the property, the removal of drums, wheels, and

tires, the removal of hoods or other car parts, the removal of scrap metal, and storing “truck

beds neatly on outside racks or… inside of the building.” The record does not indicate

what, if any, actions Mr. Reed may have taken in response to this letter.

4
The copy of the 2007 Litter Ordinance presented for our review does not contain
Section 12B, but the circuit court order under review states that Section 12B contains the
quoted language and neither party has disputed this statement.
5
In fact, the circuit court held that Mr. Reed’s use of his property was prohibited
under the 2007 Litter Ordinance.
6
This ordinance was actually styled “Litter and Property Maintenance Ordinance.”
4
On November 13, 2017, the Town passed an ordinance adopting the 2015

version of the IPMC.7 Section 302.8 of the IPMC provided:

302.8 Motor Vehicles. Except as provided for in other
regulations, no inoperative or unlicensed motor vehicle shall
be parked, kept or stored on any premises and no vehicle shall
at any time be in a state of major disassembly, disrepair, or in
the process of being stripped or dismantled. Painting of
vehicles is prohibited unless conducted in an approved spray
booth.

This language was subject to the following exception:

Exception: a vehicle of any type is permitted to undergo major
overhaul, including body work, provided that such work is
performed inside a structure or similarly enclosed area
designed and approved for such purposes.

Although the 2015 IPMC does not contain a grandfather clause, the 2017 Ordinance which

adopted it provided that:

(d) Nothing in this legislation or in the International Property
Maintenance Code hereby adopted shall be construed to affect
any suit or proceeding impending in any court, or any rights
acquired, or liability incurred, or any cause or causes of action
acquired or existing, under any act or ordinance hereby
repealed of this law. Nor shall any just or legal right or remedy
of any character be lost, impaired, or affected by this
legislation.

7
According to the 2017 Ordinance, the IPMC was adopted pursuant to West Virginia
Code § 8-12-13(c) (2017), which authorizes municipalities to adopt the “state building code
promulgated by the State Fire Commission.” The 2017 Ordinance repealed “all previously
enacted ordinances of the Town of Beverly or parts of ordinances in conflict with the
adoption of the same.”
5
The parties do not dispute that this language is sufficient to function as a grandfather clause

and preserve a use that was lawful before the 2017 Ordinance was enacted. Furthermore,

neither party contends that Mr. Reed’s use of his property was allowed under the IPMC

without grandfathering.

On April 12, 2018, the Town’s Code Enforcement Officer8 issued a notice of

violation concerning four sections of the IPMC and gave Mr. Reed twenty days to bring

his property into compliance. On or about July 16, 2018, following a hearing at which Mr.

Reed appeared pro se, the Appeals Board of the Town of Beverly (“Appeals Board”)

unanimously affirmed the Notice of Violation, finding that the various violations had not

been substantially corrected. Mr. Reed subsequently hired Mr. Phillips to represent him,

and on August 6, 2018, they appealed the decision of the Appeals Board to the Circuit

Court of Randolph County. By an order entered on October 28, 2019, the parties voluntarily

dismissed all the alleged violations of the IPMC except for the violation of Section 3.02

8
Section 3-7(f) of the 2017 Ordinance stated in part that:

The Code Official shall enforce the provisions of the International Property
Maintenance Code. The Code Official shall have the authority to render
interpretations of this code and to adopt policies and procedures in order to
clarify the application of its provisions. The Code Official shall issue all
necessary notices and orders to ensure compliance.

Similar language is contained in Section 104.1 of the IPMC.

6
pertaining to motor vehicles.9 During the hearing on the Town’s motion for summary

judgment, Mr. Phillips did not argue that Mr. Reed’s use of his property was lawful under

the 1988 Litter Ordinance and had been grandfathered as a lawful preexisting use when the

IPMC was adopted. On May 22, 2020, the circuit court entered an order finding that Mr.

Reed had clearly violated the IPMC provision pertaining to unlicensed and inoperative

vehicles and granted summary judgment in favor of the Town. In its order, the circuit court

found that Mr. Reed had admitted in discovery to parking, keeping, and storing several

inoperative vehicles on his property for lengthy periods with “no apparent effort to restore

them to an operable condition,10” and awarded $40,300.00 against Mr. Reed. Its judgment

was never appealed and is now final.

9
The Notice of Violation also alleged that the property owned by Mr. Reed was
unsafe and unfit for human occupancy, had an accumulation of garbage, and was a rodent
harborage. All of these alleged violations were voluntarily dismissed.
10
In its order, the Circuit Court of Randolph County found that:

…plaintiff admitted to the violation of 2015 [IPMC] … through discovery
responses in which plaintiff admitted that …he had parked, kept, or stored
motor vehicles on his property. In his deposition, plaintiff acknowledged that
most of the vehicles on his property were inoperative and have been on the
property for over a year.

This Court recognizes that Mr. Reed operates a car repair business. The Court
distinguishes the applicability of [the] 2015 [IPMC] to the nature of this
business, i.e., restoring automobiles to a running and operable condition for
prompt return to their owner’s use, from its applicability to the facts of this
case, wherein at least nine different motor vehicles have accumulated at [Mr.
Reed’s] business location which have remained there for a period of over a
year with no apparent effort to restore them to an operable condition useful
to their respective owners. For example, [Mr. Reed] clearly is “storing” an
inoperable 1982 Mercedes Benz automobile on this property, for its owner,
for a fee.
7
On May 23, 2022, Mr. Reed filed a complaint against Mr. Phillips, his former

counsel, in the Circuit Court of Monongalia County,11 alleging that he had committed

malpractice by failing to file an appeal, by failing to notify Mr. Reed that no appeal had

been filed, and by “not properly advising and representing the interests of [Mr. Reed] with

respect to the issues regarding the Town of Beverly.”12 Both parties filed motions for

summary judgment. Although the complaint did not specifically allege that Mr. Phillips

had committed malpractice by failing to argue that Mr. Reed’s use of his property was

grandfathered, the circuit court heard argument on this issue and held that the failure to

raise this defense had not been malpractice because it would not have been a viable defense

given the circumstances of the case. Mr. Reed appeals from the judgment of the circuit

court insofar as it pertains to counsel’s failure to assert grandfathering as a defense.13

II. STANDARD OF REVIEW

In light of the foregoing, the Court FINDS that there is no genuine issue of
material fact, and defendant is entitled to judgment as a matter of law….
11
Apparently, the civil action against Mr. Phillips was filed in Monongalia County,
rather than Randolph County where the underlying litigation occurred, because his office
was in Morgantown.
12
Current counsel for Mr. Reed was hired after this complaint was filed. The
attorney who filed the complaint against Mr. Phillips is not involved in this appeal.
13
The circuit court also found that Mr. Phillips’s failure to file an appeal was not
malpractice because his contract with Mr. Reed did not require him to do so. Mr. Reed has
not raised this ruling as an issue on appeal.

8
Appellate review of a circuit court's order granting a motion for summary

judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure is de novo.

Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). In conducting its de

novo review, this Court is obligated to apply the same standard for granting summary

judgment that was applied by the trial court, namely, that “[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.”

Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d

770 (1963).

III. DISCUSSION

In deciding the motion for summary judgment, the circuit court concluded

that Mr. Phillips was not negligent in failing to raise grandfathering because it was not a

viable defense given the facts of this case.14 Mr. Reed argues on appeal that grandfathering

was a viable legal defense,15 asserting that:

14
Of course, no one is required to assert a frivolous defense. In fact, there are ethical
and professional duties to refrain from raising defenses which have no merit.

15
Even if Mr. Reed established that grandfathering was a viable defense in this case,
in order to prevail against his former counsel, he would still have to establish that the
standard of care required Mr. Phillips to raise the defense, and that the failure to do so
proximately caused the unfavorable result for Mr. Phillips. Defense counsel is not
necessarily required in every case to raise every possible defense.

9
(a) his use of the subject property was lawful under the 1988 Litter Ordinance because it

was necessary to the operation of his business;

(b) his use was grandfathered under the 2007 Litter Ordinance despite the absence of

grandfathering language in the ordinance because it was a non-conforming use under

McFillan v. Berkeley Cnty. Plan. Comm’n, 190 W. Va. 458, 438 S.E.2d 801 (1993); and

(c) his use was further grandfathered under the 2017 Ordinance adopting the IPMC because

it was a lawful use prior to the adoption of the IPMC.

We find it unnecessary to address whether Mr. Reed’s usage of the property

was necessary to the operation of his business, and therefore lawful, under the 1988 Litter

Ordinance, because such use was not grandfathered when the 2007 Litter Ordinance was

passed. Thus, it was not a lawful use that could be grandfathered when the IPMC was

adopted in 2017.

Although acknowledging that the 2007 Litter Ordinance did not contain a

grandfather clause, Mr. Reed argues that McFillan recognized a general doctrine of

nonconforming use in land use cases which applies even when an ordinance does not

contain a grandfather clause.16 McFillan was a zoning case which involved subdivision

16
Relying on Bittinger v. Corp. of Bolivar, 183 W. Va. 310, 395 S.E.2d 554 (1990),
Mr. Reed also argues that the 2007 Litter Ordinance did not repeal the 1988 Litter
Ordinance. In Bittinger, the court held that an ordinance could only be repealed by another
ordinance or an instrument of equal dignity. Bittinger does not help Mr. Reed because we
are dealing in this case with two ordinances, clearly instruments of equal dignity.
10
regulations and the planned expansion of a mobile home park which existed prior to the

passage of a regulation requiring each individual mobile home lot to contain at least 5000

square feet. As the McFillan court explained in Syllabus Point 3 of its opinion:

A non-conforming use is a use which, although it does not
conform with existing zoning regulations, existed lawfully
prior to the enactment of the zoning regulations. These uses are
permitted to continue, although technically in violation of the
current zoning regulations, until they are abandoned. An
exception of this kind is commonly referred to as a
‘grandfather’ exception.

“A nonconforming use allows the owner of property to avoid conforming to a land-use

regulation that [affects] his property.” Id. at Syllabus Point 4, in part.

The regulations at issue in McFillan (like the 2007 Litter Ordinance in this

case) did “not contain specific language exempting a nonconforming use,” but the court

acknowledged that “[i]n West Virginia we have statutorily recognized a nonconforming

use, and we have mandated that a nonconforming use cannot be prohibited if the purpose

of the use remains the same after the ordinance is enacted. W. Va. Code, 8–24–

50 [1984].” Id. at 463, 438 S.E.2d at 806 (internal quotation marks omitted). West Virginia

Code § 8-24-50 (1984), the statutory grandfather provision involved in McFillan, provided

in pertinent part that:

Such zoning ordinance or ordinances shall not prohibit the
continuance of the use of any land, building or structure for the
purpose for which such land, building or structure is used at the
time such ordinance or ordinances take effect, but any
alteration or addition to any land or any alteration, addition or
11
replacement of or to any existing building or structure for the
purpose of carrying on any use prohibited under the zoning
rules and regulations applicable to the district may be
prohibited[.]

Although the language in § 8-24-5017 preserving preexisting uses spoke of

nonconforming use in terms of zoning ordinances, the McFillan opinion used arguably

broader language, stating that “we believe the broad scope of land-use regulations

authorized in W. Va. Code, 8–24–1, et seq., allows a nonconforming use exemption

enacted thereunder to apply to any regulation that restricts the use of land. In the present

case, we deal with subdivision regulations enacted under W. Va. Code, 8–24–28, et seq.”

Id. at 463, 438 S.E.2d at 806 (Emphasis added); see also id. at Syllabus Point 2 (“The broad

scope of land-use regulations authorized in W. Va. Code, 8–24–1, et seq., allows a

nonconforming use exemption enacted thereunder to apply to any regulation that

restricts the use of land.”) (Emphasis added). Mr. Reed argues that the language in

McFillan referring to “any regulation that restricts the use of land” means that his use of

the subject property was grandfathered regardless of whether the 2007 Litter Ordinance

contained a grandfather clause of its own.

Initially, we note that the 2007 Litter Ordinance did not prevent Mr. Reed

from using his property for a car repair business. More importantly, cases decided after

17
West Virginia Code 8-25-50 was repealed in 2004. Language preserving lawful
preexisting uses when new zoning laws are passed is now found at West Virginia Code §
8A-7-10(c) (2022).
12
McFillan make it clear that not every ordinance or regulation which affects land use is

subject to statutory grandfathering. Post-McFillan cases draw a distinction between

ordinances which are passed pursuant to a local government’s zoning authority and

ordinances which are passed under other more general grants of authority to promote public

health and safety.18

For example, in Weyer v. Wood Cnty. Comm’n, No. 14-1167, 2015 WL

6955137 (W. Va. Nov. 6, 2015) (memorandum decision), the court addressed whether a

floodplain ordinance which required mobile homes that were installed or substantially

improved to be elevated two feet above Base Flood Elevation was subject to the statutory

grandfathering provision for zoning ordinances contained in West Virginia Code 8A-7-

10.19 The court held that it did not, relying in part on the fact that the floodplain ordinance

18
“Although zoning ordinances are enacted under a municipality’s police power, all
ordinances enacted under the police power are not zoning ordinances.” 101A C.J.S. Zoning
and Land Planning § 8 Westlaw, (database updated December 2025).
19
This section provides:

(a) After enactment of a zoning ordinance by a municipality or county, all
subsequent land development must be done in accordance with the
provisions of the zoning ordinance.
****
(c) Land, buildings or structures in use when a zoning ordinance is enacted
can continue the same use and such use cannot be prohibited by the zoning
ordinance so long as the use of the land, buildings or structures is maintained,
and no zoning ordinance may prohibit alterations or additions to or
replacement of buildings or structures owned by any farm, industry or
manufacturer, or the use of land presently owned by any farm, industry or
manufacturer but not used for agricultural, industrial or manufacturing
purposes, or the use or acquisition of additional land which may be required
13
was not a zoning ordinance passed pursuant to the statutory scheme controlling zoning and

planning. As the court explained:

Petitioners contend that, because they depended on the zoning
laws and floodplain ordinances in effect when the property was
purchased, it is contrary to West Virginia Code § 8A–7–10 to
require existing mobile home lots to comply with the
Ordinance as revised in 2007. We disagree. Petitioners'
argument fails because the Ordinance is not a zoning ordinance
to which the non-conforming use “grandfather” exception
applies. The Ordinance was adopted pursuant to West Virginia
Code § 7–1–3v, which authorizes county commissions to enact
floodplain management plans to comply with the requirements
of the National Flood Insurance Act and related state and
federal programs. This provision allows for freestanding
floodplain management plans separate and apart from general
land use regulations, such as those contemplated in West
Virginia Code §§ 8A–7–1 through –13. This distinction is
important because the non-conforming use or “grandfather”
exception is a land-use doctrine, which is inapplicable to the
Ordinance at issue here.

Id. at *4.

In McClure v. City of Hurricane, 227 W. Va. 482, 711 S.E.2d 552 (2010), a

property developer brought a declaratory judgment action against a city and sanitary

stormwater board seeking a declaration that a stormwater management and erosion control

ordinance did not apply to its development of a residential subdivision. The circuit court

for the protection, continuing development or expansion of any agricultural,
industrial or manufacturing operation of any present or future satellite
agricultural, industrial or manufacturing use. A zoning ordinance may
provide for the enlargement or extension of a nonconforming use, or the
change from one nonconforming use to another.
14
held that the Appellees were grandfathered from complying with the stormwater ordinance,

relying on H.R.D.E., Inc. v. Zoning Officer of the City of Romney, 189 W. Va. 283, 430

S.E.2d 341 (1993), even though H.R.D.E. was a zoning case. Id. at 488, 711 S.E.2d at 558

(footnotes omitted). In holding that grandfathering was inapplicable, the Supreme Court of

Appeals of West Virginia (“SCAWV”) reasoned in part that:

The reliance by the circuit court on this Court's decision
in H.R.D.E. was erroneous. The decision in H.R.D.E. dealt
with a nonconforming use, a concept which is part of the law
of zoning. H.R.D.E., 189 W.Va. at 286, 430 S.E.2d at 344 (“A
nonconforming use is ‘[a] use which lawfully existed prior to
the enactment of a zoning ordinance, and which is maintained
after the effective date of the ordinance, although it does not
comply with the zoning restrictions applicable to the district in
which it is situated[.]’ 1 Robert M. Anderson, American Law of
Zoning 3d, § 6.01, at 446 (1986).”). The applicability of the
instant ordinance to the new construction in the Appellees'
subdivision is not analogous to nonconforming use in a zoning
case. The subject ordinance was not enacted as part of a
comprehensive plan and did not change or alter the character
or use of the Appellees' property.

Id. at 489, 711 S.E.2d at 559.

Also instructive, although it does not involve nonconforming use, is

Harrison v. Town of Eleanor, 191 W. Va. 611, 447 S.E.2d 546 (1994), which involved an

ordinance requiring 20-foot setbacks, and addressed the question of whether the ordinance

in question was a zoning ordinance or a building ordinance, a question that determined the

applicable notice requirements. After determining that the nature of the ordinance was a

legal question to be determined by the court, rather than by a jury, the SCAWV held that

15
the ordinance was a building ordinance enacted under W. Va. Code § 8-12-13(a)(1) rather

than a zoning ordinance enacted pursuant to W. Va. Code § 8-24-39. In reaching this

conclusion, the SCAWV distinguished between building and zoning codes, as set forth in

Syllabus Points 6 and 7:

6. “Zoning is concerned with whether a certain area of a
community may be used for a particular purpose....” Syl. Pt. 1,
in part, Kaufman v. Planning & Zoning Comm'n, 171 W.Va.
174, 298 S.E.2d 148 (1982).
7. A building ordinance enacted pursuant to West Virginia
Code § 8–12–13 (1990) involves how the use of any given
piece of property is undertaken, while a zoning ordinance
enacted pursuant to West Virginia Code § 8–24–39 (1990)
concerns whether a certain piece of property may be used for a
particular purpose.

Id. at 613, 447 S.E.2d at 548.

In the case at bar, the 2007 Litter Ordinance was a litter and/or property

management ordinance, passed pursuant to the town’s statutory powers to control the

accumulation of trash and refuse,20 rather than its statutory powers to zone and plan.21

20
West Virginia Code § 8-12-5(10) (2002) authorized municipalities “[t]o prohibit
the accumulation and require the disposal of garbage, refuse, debris, wastes, ashes, trash
and other similar accumulations whether on private or public property[.]” More generally,
West Virginia Code § 8-12-5(23) (2002) authorized municipalities “[t]o provide for the
elimination of hazards to public health and safety and to abate or cause to be abated
anything which in the opinion of a majority of the governing body is a public nuisance[.]”
Significantly, the 2007 Litter Ordinance defined litter as any waste which “tends to create
a danger to public health, safety, and welfare or to impair the environment of the people of
the city.”
21
West Virginia Code § 8A-7-1 (2004) authorizes municipalities to regulate land
use through zoning ordinances.
16
Nothing in the record indicates that it was enacted as part of a comprehensive plan for

community development under the zoning statutes. The ordinance does not regulate

whether Mr. Reed’s property may be used for purposes of a car repair business. Rather, it

controls how he operates his business and the condition of his property, specifically,

whether he may accumulate visible litter, including inoperable vehicles and car parts.22

Because the 2007 Litter Ordinance was not a zoning or land use ordinance, the statutory

grandfathering provision for nonconforming uses did not apply. See St. Charles County,

Mo. v. St. Charles Sign & Electric, Inc., 237 S.W.3d 272, 276-77 (Mo. Ct. App. 2007)

(holding that an ordinance requiring fencing around scrap and junk stored outdoors was

not a zoning ordinance subject to the nonconforming use doctrine).

Reed argues that his use of the subject property was lawful under the 1988

Litter Ordinance and the 2007 Litter Ordinance, and thus subject to the grandfathering

provision of the 2017 Ordinance which adopted the IPMC, because he was never cited or

fined for noncompliance with those litter ordinances. The fact that the Town may not have

issued a previous notice of violation or fined him, however, does not mean that his usage

was lawful under the litter ordinances. It simply means that the town, for whatever reason,

chose not to pursue its remedies against him. He was repeatedly warned by the Town’s

22
As the circuit court indicated in its third finding of fact: “The Town of Beverly
has never indicated to the Plaintiff that he could not operate his business at its current
location. However, since at least 2006, the Town of Beverly has taken issue with the
condition of the property, including but not limited to the presence of unlicensed and/or
inoperable vehicles located thereon.”
17
attorney that he was in violation of the applicable ordinances, and it appears that he may

have made some efforts in the past to correct at least some of the conditions on his property.

For all we know, he may have done just enough to keep the Town from pursuing further

action against him until the Town sent the notice of violations. In any event, the fact that

the Town never cited or fined Mr. Reed until it charged him with violations of the IPMC

does not establish that he never violated any of the Town’s ordinances, i.e., that his conduct

was lawful prior to adoption of the IPMC.23

In further support of his argument that a genuine issue of material fact existed

as to whether he ever violated the litter ordinances, Mr. Reed asserts in one cursory

sentence of his initial appellate brief that he “was cited by the Town of Beverly for the

same violation in 2022, went to Magistrate Court, took the position that he was

‘grandfathered’ in; the case was dismissed; and the Town of Beverly never appealed the

dismissal.” Mr. Reed does not explain why the magistrate case was dismissed, indicate

whether the dismissal was with prejudice, or cite anything in the record which supports his

23
The appendix contains a document from the Town of Beverly dated July 11, 2011
(apparently a portion of the minutes from a town council meeting), which states that a
business license for the Beverly Marathon was denied because it was in violation of the
property maintenance code. Mr. Reed argues that his business never operated without a
business license and, therefore, there was a genuine issue of material fact precluding
summary judgment. Respondent Phillips counters that this argument was never made or
considered by the trial court. Even if this argument was made below, it is not compelling
because, as noted above, the fact that the Town may not have pursued its remedies against
Mr. Reed does not mean that his usage was allowed by the Town’s litter ordinances and
therefore lawful.
18
position that the magistrate court made any rulings about grandfathering. Furthermore, the

alleged order from magistrate court was not submitted for our review as part of the

appendix. Consequently, pursuant to Rule 10 of the Rules of Appellate Procedure, we do

not consider the alleged magistrate ruling in our analysis. See Mulla v. Ball, No. 25-ICA-

261, 2026 WL 291981, at *2 (W. Va. Ct. App. Feb. 3, 2026) (memorandum decision)

(quoting State v. Kaufman, 227 W. Va. 537, 555 n.39, 711 S.E.2d 607, 625 n.39 (2011))

(“A skeletal argument, really nothing more than an assertion, does not preserve a claim.”);

Mansberger v. City of Morgantown, No. 19-0226, 2020 WL 2042967, at *2 (W. Va. April

28, 2020) (memorandum decision) (citing Rule 10(c)(7) of the West Virginia Rules of

Appellate Procedure, the court disregarded an argument that the petitioner was charged

with a violation of the wrong section of the municipal code when the citation, “the charging

document,” was not included in the appendix on appeal).

IV. CONCLUSION

We affirm the October 18, 2024, order of the circuit court finding that Mr.

Phillips did not commit legal malpractice when he failed to raise grandfathering as a

defense to a notice of violation of the 2015 IPMC based on his storage of unlicensed and

inoperative vehicles on his property which were not kept in suitably enclosed areas.

Although the ordinance adopting the IPMC contained language preserving preexisting

lawful uses, Mr. Reed’s use of his property was neither allowed nor grandfathered under

the 2007 Litter Ordinance, regardless of whether it was permissible under the 1988 Litter

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Ordinance. Thus, it was not lawful when the IPMC was adopted. Accordingly, the circuit

court did not err when it held that grandfathering based on nonconforming use was not a

viable defense and therefore Mr. Phillips did not commit malpractice as a matter of law.

Affirmed.

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