Robert Smith, Jr. v. Robert Smith

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

ROBERT SMITH, JR.,
Defendant Below, Petitioner

v.) No. 24-ICA-278 (Cir. Ct. of Mingo Cnty. Case No. CC-30-2023-C-132)

ROBERT SMITH, FILED
Plaintiff Below, Respondent April 29, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION

Petitioner Robert Smith, Jr., (“Son”) appeals the June 5, 2024, order from the Circuit
Court of Mingo County, which quieted title to a certain tract of real property in favor of
Respondent Robert Smith (“Father”). Father filed a response.1 Son did not file 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 prejudicial error. For
these reasons, a memorandum decision affirming the circuit court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

From the outset, we find that the record on appeal is sparse, which limits this Court’s
recitation of the facts. From what can be gathered, this case stems from competing deeds
held by the parties for the same parcel of land. Specifically, on July 10, 1990, Fred Mounts
conveyed to Father by general warranty deed, certain real property described as:

Lot Numbers One (1), Two (2), Three (3), and Four (4) in Block “2” of the
McKenzie Addition to the Town of North Matewan, Mingo County, West
Virginia, as shown and designated upon the Official Map of said Addition
made by L.C. Linkous.

This deed was recorded on July 16, 1990 (“Father’s Deed”). A subsequent
“Corrective Deed of Conveyance” was executed on July 1, 1993, and later recorded
wherein Fred Mounts purported to convey to Son the same tract of land previously
conveyed to Father (“Corrective Deed”). Under the Corrective Deed’s declaration of
consideration/value, Son attested:

I hereby declare that the consideration paid for the property conveyed by the
instrument to which this declaration is appended is the sum of One Dollar

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On appeal, both parties are self-represented.
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($1.00), said deed being for the purpose of correcting Grantee’s name from
Robert Smith to Robert Smith, Jr.

The circumstances leading up to this litigation are underdeveloped in the record. It
appears that around 1993, Son approached Father about using the subject property as
collateral for a home construction loan. However, the parties do not agree as to the details
of this agreement. According to Son, he paid Father $1.00 for the July 1, 1993, Corrective
Deed. Conversely, Father maintains that while he permitted Son to use the property as
collateral, there was never an agreement about transferring the property into Son’s name
or adding the suffix “Jr.” to the deed.

On May 29, 2015, Father placed a mechanic’s lien on the subject property to secure
Son’s repayment of $28,000. No other context is provided for the nature of this debt. Son
claims he had no notice of the lien until this litigation. On February 15, 2019, Father
retained counsel who sent Son a demand letter, which referenced Son’s use of the property
as collateral for a loan, and Son’s agreement to deed the property back to Father once the
loan was satisfied.

Father filed the present action in circuit court on November 16, 2023, and on May
1, 2024, he filed a motion to quiet title. The record reflects that on May 2, 2024, a notice
of filing setting a hearing for June 6, 2024, was filed. Also, on May 9, 2024, Father’s
counsel filed with the court a notice of hearing and certificate of service, reflecting that a
hearing on the motion was scheduled for June 4, 2024, at 11:00 a.m. According to the
certificate of service, Son was sent a copy of this notice by certified mail.

Son failed to appear at the June 4, 2024, hearing. By order entered on June 5, 2024,
the circuit court held that according to the deeds at issue, Father’s Deed was recorded three
years prior to Son’s claim that he purchased the property through the Corrective Deed. The
circuit court also found that at the time of the Corrective Deed, Father held legal title to the
property and that there was no deed within the chain of title from which Father had
conveyed his interest in the property to Son. The circuit court found there was no evidence
that Father intended to divest himself of his property interest and held that the Corrective
Deed was void. The circuit court’s order removed the cloud from Father’s title and ordered
the Corrective Deed to be set aside. This appeal followed.

On appeal, we apply the following standard of review:

In reviewing challenges to the findings and conclusions of the circuit court,
we apply a two-prong deferential standard of review. We review the final
order and the ultimate disposition under an abuse of discretion standard, and
we review the circuit court's underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo review.

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Syl. Pt. 2, Walker v. W. Va. Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997).

On appeal, Son argues that he did not attend the June 4, 2024, hearing because he
had received a letter indicating that a hearing was set for June 6, 2024. While the record
reflects that on May 2, 2024, a notice of filing setting a hearing for June 6, 2024, was filed;
the record further reflects that seven days later, on May 9, 2024, a notice of hearing, setting
the hearing for June 4, 2024, was filed. There is no dispute that Son received both notices,
as both were contained as exhibits in his appendix filed before this Court. Accordingly,
based upon the documentation contained within the record, we find no merit in Son’s
argument that his receipt of a June 6, 2024, notice of filing negated his necessity to appear
for the June 4, 2024, hearing that was properly noticed and was filed, in time, after the June
6, 2024, notice of filing.

Son’s remaining argument challenges the sufficiency of the evidence to support the
circuit court’s ruling below. In support of this contention, Son claims the mechanic’s lien
and Corrective Deed contradict the circuit court’s determination and show that Father
transferred his interest in the property to him. However, Son’s failure to file a response to
the motion to quiet title or appear at the June 4, 2024, hearing precludes our consideration
of these arguments. This Court “will not consider an error which is not properly preserved
in the record nor apparent on the face of the record.” Syl. Pt. 4, State v. Browning, 199 W.
Va. 417, 485 S.E.2d 1 (1997). Here, Son failed to respond to the motion or appear at the
hearing to defend against the motion and present evidence in support of his position. Thus,
his exceptions to the circuit court’s ruling were not preserved for review on appeal.
Therefore, he has waived any arguments with respect to the merits of the circuit court’s
order.

Accordingly, the circuit court’s June 5, 2024, order is affirmed.

Affirmed.

ISSUED: April 29, 2025

CONCURRED IN BY:

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

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