Sallie Murphy v. Ken Groves

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
December 6, 2024
SALLIE MURPHY,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Plaintiff Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-473 (Cir. Ct. of Braxton Cnty. Case No. CC-04-2018-C-26)

KEN GROVES,
Defendant Below, Respondent

MEMORANDUM DECISION

Petitioner Sallie Murphy appeals the Circuit Court of Braxton County’s September
25, 2023, final order approving an updated survey in a property line dispute action
presented by Respondent Ken Groves. Mr. Groves filed a response.1 Ms. Murphy 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.

Ms. Murphy filed the underlying action against Mr. Groves in 2018 to establish the
location of a disputed property boundary line. The matter was initially set for a bench trial
in December 2018, but was continued at Ms. Murphy’s request to allow her time to retain
new counsel. Ms. Murphy failed to obtain new counsel and represented herself at the trial
held May 1, 2019. On October 15, 2019, the circuit court entered an order establishing the
location of the boundary line. Ms. Murphy hired an attorney and appealed the October 15,
2019, order to the Supreme Court of Appeals of West Virginia (“SCAWV”). The October
2019, order was affirmed by the SCAWV in a memorandum decision in 2021. See Murphy
v. Groves, No. 19-1031, 2021 WL 653200 (W. Va. Feb. 19, 2021) (memorandum decision).

Thereafter, the circuit court set the matter for a second bench trial for the limited
purpose of determining whether the property’s new survey comported with the boundary
line as determined by the court in its October 15, 2019, order. After several continuances
and Ms. Murphy’s discharge of her second attorney, the trial was scheduled for August 15,
2023. However, on August 7, 2023, a week prior to the trial, Ms. Murphy filed a motion to

1
Ms. Murphy is represented by Richard J. Lindroth, Esq. Mr. Groves is represented
by Gary A. Matthews, Esq.
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continue requesting time for her to find a new attorney. The circuit court denied this motion
by order entered August 17, 2023. The order contained thirteen paragraphs of findings and
conclusions outlining the reasons it denied Ms. Murphy’s motion to continue.

The matter proceeded to a second bench trial on August 15, 2023, at which time Ms.
Murphy appeared self-represented. At the trial, Mr. Groves presented expert witness,
Dwayne Hall, a licensed surveyor, who testified that his updated survey and opinions
regarding the location of the boundary line were consistent with the October 15, 2019,
order. Ms. Murphy cross-examined Mr. Hall but did not call any witnesses on her behalf
and did not offer any documents into evidence as part of her case in chief. At the conclusion
of the trial, Ms. Murphy renewed her motion to continue. The circuit again denied the
motion, directed the parties to file proposed findings of fact and conclusions of law, and
took the matter under advisement. The circuit court summarized the proceedings and its
rulings at the trial in an order entered August 17, 2023.2 On September 25, 2023, the circuit
court entered an order approving the survey presented by Mr. Groves. This order contained
findings of fact regarding the survey presented by Mr. Groves and conclusions of law
regarding its accuracy but did not address Ms. Murphy’s continuance requests. Thereafter,
Ms. Murphy retained counsel and filed this appeal.

On appeal, we apply the following standard of review:

In reviewing challenges to the findings and conclusions of the circuit court
made after a bench trial, a two-pronged deferential standard of review is
applied. The final order and the ultimate disposition are reviewed under an
abuse of discretion standard, and the circuit court's underlying factual
findings are reviewed under a clearly erroneous standard. Questions of law
are subject to a de novo review.

Syl. Pt. 1, Public Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d
538 (1996).

On appeal, Ms. Murphy lists four assignments of error, the first three of which relate
to her attempts to continue the second bench trial, which we will address together. See
Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231, 237
(2012) (per curiam) (stating the general proposition that related assignments of error may
be consolidated for ruling); Jacquelyn F. v. Andrea R., No. 16-0585, 2017 WL 2608425,
at *3 n. 2 (W. Va. June 16, 2017) (memorandum decision) (restating assignments of error
where they involve clearly related issues). Ms. Murphy argues that the circuit court abused
its discretion when it denied her requests to continue the second bench trial because: (1) as

2
The circuit court entered two orders on August 17, 2023: (1) the order denying Ms.
Murphy’s motion to continue filed August 7, 2023; and (2) the order summarizing the trial
proceedings and the circuit court’s rulings.
2
a self-represented party, she was not equipped to proceed with the second trial; (2) the
matter had no real urgency and delay of a few more months would not prejudice Mr.
Groves; (3) her claims were defeated at trial solely by reason of her unfamiliarity with
procedural and evidentiary rules; (4) she was forced to attend the second bench trial as a
self-represented party and as a result did not follow protocols to ensure that her surveyor
would testify at trial.

At the outset, we note that the circuit court’s findings and conclusions regarding Ms.
Murphy’s requests to continue are contained in the two August 17, 2023, orders. Those
orders, however, were not attached to Ms. Murphy’s Notice of Appeal. Rule 5(b) and
Appendix A of the Rules of Appellate Procedure require that a petitioner attach copies of
all orders being appealed and any orders not attached are not properly before the appellate
court. See Campbell v. CSX Transportation, 2019 WL 4257173, at *3, n. 8 (W. Va.
September 9, 2019) (memorandum decision). As Ms. Murphy did not attach the two
August 17, 2023, orders to her Notice of Appeal, we find that they are not properly before
this Court for appellate review.

Nonetheless, we find that the circuit court did not abuse its discretion by denying
Ms. Murphy’s requests to continue the second trial. “A motion for continuance is addressed
to the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless
there is a showing that there has been an abuse of discretion.” Syl. Pt. 2, State v. Bush, 163
W. Va. 168, 255 S.E.2d 539 (1979).

In its denial of Ms. Murphy’s motion to continue, the circuit court found: (1) that
Ms. Murphy had hired and fired two attorneys during the litigation; (2) that she was granted
several trial continuances; (3) that Ms. Murphy was provided more than two months to
obtain new counsel before the second trial; (4) that the circuit court denied Ms. Murphy’s
attorney’s motion to withdraw so that her rights were protected while she searched for new
counsel; and (5) that Ms. Murphy was aware of the nature of the trial to be held on August
15, 2023, and made three last-minute continuance requests, all for inadequate reasons.
Based on our review, we find that the circuit court properly weighed the appropriate factors
when faced with Ms. Murphy’s requests to continue the second trial.

In her fourth assignment of error, Ms. Murphy asserts that she was prejudiced by
the circuit court’s use of the West Virginia E-filing System, because broadband internet
access is intermittent where she resides and as a result, she did not receive certain notices
and other court filings. However, Ms. Murphy’s claim of prejudice caused by the circuit
court’s use of the West Virginia E-filing System and intermittent broadband access is a
new argument raised for the first time on appeal.

It is well settled that

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[A] party who has not raised a particular issue or defense below may not raise
it for the first time on appeal. “Indeed, if any principle is settled in this
jurisdiction, it is that, absent the most extraordinary circumstances, legal
theories not raised properly in the lower court cannot be broached for the first
time on appeal. We have invoked this principle with near religious fervor.”
State v. Miller, 197 W. Va. 588, 597, 476 S.E.2d 535, 544 (1996).

State v. Costello, 245 W. Va. 19, 26, 857 S.E.2d 51, 58 (2021). Ms. Murphy failed to raise
this issue below, and therefore, we decline to review this argument on appeal.3

We further note that Ms. Murphy failed to assign any error to the findings of fact
and conclusions of law contained in the September 25, 2023, order. The record establishes
that Mr. Hall provided expert testimony, his updated survey was admitted into evidence,
and the circuit court relied on his testimony and the survey in providing its ultimate
conclusions. Ms. Murphy did not present any witnesses or other evidence in support of her
position or to oppose Mr. Groves’ evidence. Therefore, we cannot conclude that the circuit
court’s disposition of the case was an abuse of discretion or that its factual findings or
conclusions of law are clearly erroneous.

Accordingly, we affirm the September 25, 2023, order.

Affirmed.

ISSUED: December 6, 2024

CONCURRED IN BY:

Judge Charles O. Lorensen
Judge Daniel W. Greear

Chief Judge Thomas E. Scarr, not participating

3
For the same reasons, we also decline to address Ms. Murphy’s contention that she
was prejudiced by the entry of the September 25, 2023, order because it was entered by a
different judge. See n.2 supra.
4