Kvech et al v. Alpine Lake Property Owners Association, Inc

Filing 90

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 72 ). Signed by District Judge Irene M. Keeley on 2/11/15. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

TIMOTHY KVECH and DIANE M. KVECH,
Plaintiffs,
v.

//

CIVIL ACTION NO. 1:13CV242
(Judge Keeley)

ALPINE LAKE PROPERTY OWNERS
ASSOCIATION, INC.
Defendant.

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 72]
Pending before the Court is the motion for summary judgment
(dkt. no. 72) filed by the defendant, Alpine Lake Property Owners
Association, Inc. (“ALPOA”).

For the reasons that follow, the

Court GRANTS IN PART and DENIES IN PART ALPOA’s motion.
I. BACKGROUND
This cases arises from a dispute concerning a right-of-way
easement allegedly granted to the plaintiffs, Timothy Kvech (“Mr.
Kvech”) and his wife Diane Kvech (“Mrs. Kvech”) (collectively, the
“Kvechs”), by the former general manager of Alpine Lake Resort,
James Wilson (“Wilson”).

The following facts and any inferences

drawn from them are viewed in the light most favorable to the
Kvechs, the non-movants.
Cir. 1994).

See Shaw v. Stroud, 13 F.3d 791, 798 (4th

KVECH, ET AL. v. ALPOA, INC.

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
A.

Factual Background
The Alpine Lake Resort (the “Resort”) encompasses 2000 acres

of land located in Terra Alta, West Virginia. Its eastern boundary
is the state line running vertically between Preston County, West
Virginia, and Garrett County, Maryland. Abutting the Resort on the
Maryland side is a strip of land, about one-eighth of a mile wide,
owned by Hubert M. Gainer (“Gainer”).1

Bordering the Gainer

property to the east and south is a 100-acre tract of land known as
the “Snaggy Road Property.”
Grace VanSickle had owned the Snaggy Road Property for some
time until her death. After she died, the property passed to her
estate (the “VanSickle Estate”), which, in February 2010, listed it
for sale for $178,500. After receiving little interest, the estate
re-listed the property in March 2011 for a reduced price of
$139,900.
Mr. Kvech is an avid hunter.

In 2004, he purchased property

in Friendsville, Maryland because he had “always wanted a hunting
property . . . [a]nd our intent was always to build a hunting cabin
on

it.”

(Dkt.

No.

73-1

at

5).

1

After

years

of

owning

the

The Gainer property is not confined to Maryland, and spreads into
West Virginia on the northern side of the Resort.

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GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Friendsville property, however, Mr. Kvech realized that its steep
topography was ill-suited for a hunting cabin, and he continued to
search for land that would meet his needs.

Id. at 7.

In December

2011, he came across the listing for the Snaggy Road Property. His
real estate agent, Robert Orr (“Orr”), advised him that it was
“landlocked” and “stuck in Orphans’ Court,”2 but that did not
dispel Mr. Kvech’s interest.
Thereafter, Mr. Kvech and Orr went to visit the Snaggy Road
Property.

Initially, they tried to access it from Maryland but

were “chased off.”

Id. at 8.

After that, they drove through the

Resort to the end of Day Lily Court -- a road that ends at the
state line.

They then walked from the end of Day Lily Court,

across the state line and the Gainer property, onto the Snaggy Road
Property.

After

viewing

approximately

twenty-five

to

thirty

percent of the land, Mr. Kvech told Orr, “I love the looks of this
property, I love the fact that it’s flat, versus Friendsville
that’s steep, but I’m not going to buy it unless we can get
access.”

Id. at 9.

To that end, Mr. Kvech’s attorney attempted to negotiate a
right-of-way easement through an upscale, Maryland subdivision –-

2

“Orphan’s Court” is Maryland’s probate court.

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Minnetoska Lake -- on the southeastern side of the Snaggy Road
Property, but he was unsuccessful.

At that point, Orr advised Mr.

Kvech to “go talk to Alpine Lake, because that was the only real
feasible access.”

Id. at 11.

Mr. Kvech took his agent’s advice

and, on December 16 or 17, 2011, approached Wilson, the Resort’s
general manager.

Id. at 16.

Mr. Kvech described his predicament and told Wilson that he
needed a right-of-way through the Resort. Wilson, who was familiar
with the Snaggy Road Property,3 showed Mr. Kvech a map of the area,
noting in particular Beebalm Court and Burchinal Road.

Id. at 17.

Beebalm Court is a road extending almost 1000’ northeast off
Day Lily Court, but stopping about 700’ short of the state line and
the Gainer property in Maryland.

Burchinal Road is an old dirt

road that runs perpendicular to Beebalm Court, intersects Beebalm
Court tangentially at the end, and forms the upper boundary of the
Resort.

It continues southeast through West Virginia, crosses the

state line, intersects the Gainer property and the Snaggy Road
Property, and then continues into the Minnetoska Lake subdivision
that had refused access to Mr. Kvech.

3

In fact, Wilson had negotiated a contract for ALPOA to purchase
the Snaggy Road Property, but the board did not approve it. (Dkt. No.
73-1 at 17).

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Prior to 2005, Gainer had been using Burchinal Road to access
his property.

However, his right-of-way was blocked after ALPOA

granted certain land to a utilities company that then secured a
water tank on that land by fencing off the route Gainer had used.
To permit Gainer continued access, ALPOA extended Beebalm Court to
connect with Burchinal Road, and granted Gainer a right-of-way
easement for the use of the Beebalm Court extension (the “Gainer
Agreement”). To maintain security, however, ALPOA installed a gate
at the end of the Beebalm Court extension and provided Gainer a
key.

Notably, the road extension and installation of the gate

created a significant drop-off when turning right onto Burchinal
Road. ALPOA promised Gainer that it would mend that portion of the
intersection at its own cost.
During

his

initial

conversation

with

Wilson,

Mr.

Kvech

attempted to quell any concerns Wilson might have about an easement
by explaining that he would not “develop the property, use their
roads to timber, [or] use the road to extract coal and minerals.”
Id. at 17.
the Resort.

He also told Wilson, “I’d be willing to buy a lot” in
Id.

Wilson responded, “[I]f you were doing all those

things, we’d have no problem giving a Right of Way.”

Id.

Although

not part of their alleged agreement, Mr. Kvech and Wilson also

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
understood

that

Mr.

Kvech

would

fix

the

drop-off

at

the

intersection between Beebalm Court and Burchinal Road at his own
expense.

As Wilson later explained, “I kind of saw that as a win,

win for the association.”

(Dkt. No. 73-4 at 19).

Wilson showed Mr. Kvech “the best lot in Alpine Lake” for him
to purchase.

(Dkt. No. 73-1 at 18).

The lot, which ALPOA had sold

to a developer in 2008, was bounded on the northern side by Day
Lily Court and on the eastern side by the state line and the Gainer
property.
Although Wilson “acted like he had the authority” to grant an
easement, Mr. Kvech later admitted that he “didn’t do anything
else”

to

authority.

ascertain
Id.

whether

Wilson

actually

possessed

such

In fact, ALPOA’s articles of incorporation4 state

that one of the organization’s purposes is to enforce “charges,
easements, restrictions, conditions, covenants, and servitudes
existing upon and created for the benefit of the property over
which the Association may have jurisdiction.”
23).

(Dkt. No. 73-3 at

Furthermore, the bylaws provide that “[t]he affairs of the

Association are managed by a seven member Board of Directors,”

4

ALPOA’s
governing
documents
are
publicly
available
at
http://www.alpinelake.com/images/stories/member_documents/governingdoc
umentsrevised.pdf.

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GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
whose powers include “[a]dopting and publishing rules governing the
use of those parts of the Subdivision owned by, or under the
control of, the Association,” and “[e]xercising for the Association
all power whose exercise is not reserved to or committed to the
members of the Association.”

Id. at 37-38.

Nevertheless, relying on his initial conversation with Wilson,
on January 5, 2012, Mr. Kvech offered the VanSickle Estate the
asking price of $139,900 on the Snaggy Road Property.

His offer,

however, included a contingency that would permit him to determine
whether the property was feasible for his intended use of building
a hunting cabin.
able

to

If he determined it was not feasible, he would be

terminate

the

contract

within

ninety

(90)

days

of

acceptance.
Around the same time, the VanSickle Estate received another
offer

from

a

contingencies.

third
On

party,

also

January

13,

for
2012,

$139,900,
the

but

VanSickle

with

no

Estate

petitioned the Orphan’s Court to approve the sale of the Snaggy
Road Property to the third party.

Notably, the petition explained

why the property had languished on the market:
That it has been determined that the property is
landlocked. There is no deeded access to this parcel.
Efforts have been made over the past year to amicably

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
obtain
access
from
adjoining
landowners.
Petitioners have been unsuccessful.

Your

(Dkt. No. 73-7 at 1).
While that petition was pending, Wilson and Mr. Kvech had
several follow-up meetings.

Mr. Kvech recalled that, during one

such meeting, Wilson assured him that, “if [he] was a dues paying
property owner and agreed not to use Alpine’s roads for subdivision, mineral extraction and timbering, then there would be no
reason I could not have the Right of Way.”
At

another

meeting,

Wilson

introduced

(Dkt. No. 73-22 at 6).

Mr. Kvech

to

the then

president of ALPOA, Dennis Schiffbauer (“Schiffbauer”), who said
that the easement “should not be a problem.”
Wilson

informed

Mr.

Schiffbauer’s approval.

Kvech

that

an

Id.

easement

Importantly,
would

require

(Dkt. No. 73-1 at 18).

On January 20, 2012, Mr. Kvech again met with Wilson “to
assure [himself] before purchasing the Snaggy Road property that
[he] had an agreement with Alpine regarding access.” (Dkt. No. 7322 at 6).

At that meeting, the pair agreed that, “in exchange for

a Right of Way, that [Mr. Kvech] would purchase a lot in Alpine and
I would agree not to use Alpine’s roads for timbering, mineral
extraction or sub-division.”

Id.

Mr. Kvech, a savvy businessman,

let Wilson know that he “was still concerned about not having [the
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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
agreement] in writing.”

Wilson replied, “[I]n Alpine, a handshake

is as good as an agreement.”

Id.

Nonetheless, in an effort to alleviate Mr. Kvech’s concerns,
Wilson provided him a copy of the Gainer Agreement and said,
“[W]e’ll use this.”

(Dkt. No. 73-1 at 24).

“The assurances and

oral agreement that [Wilson] gave me on this day,” explained Mr.
Kvech, “is [sic] what gave me the confidence to purchase the Snaggy
property, the Alpine lot and to sell my Friendsville hunting
property.”

(Dkt. No. 73-22 at 7).

However, Mr. Kvech conceded

that an easement for Burchinal Road was not the only piece of the
puzzle.

He also would need an easement across the Gainer property

to get to the Snaggy Road Property.

In fact, Mr. Kvech had

conversations with Gainer, who told him, “[I]f Alpine gives you an
Agreement, then we’ve got no problem doing it.”

(Dkt. No. 73-1 at

21).
Based on these dealings, on February 6, 2012, Mr. Kvech made
another offer on the Snaggy Road Property, this time for $145,000
with no contingencies. The following day, having no knowledge of
Mr. Kvech’s new offer, the Orphan’s Court approved the VanSickle
Estate’s petition for approval of the sale to the third party.
Subsequently, Mr. Kvech and the VanSickle Estate each moved the

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
court to vacate its order granting the petition, and instead to
approve the sale based on Mr. Kvech’s superior offer of $145,000
with no contingencies. Mr. Kvech’s motion explained that “the
factors

for

selling

the

property

below

the

appraised

value

enumerated in the [VanSickle Estate’s] prior petition have not
changed and are incorporated herein by reference.” (Dkt. No. 73-10
at 2). On March 6, 2012, the court granted the motions, vacated its
previous order, and approved the sale of the Snaggy Road Property
to Mr. Kvech for $145,000 with no contingencies.

The VanSickle

Estate deeded the Snaggy Road Property to Mr. Kvech on March 9,
2012.
On April 5, 2012, the Kvechs purchased the lot in the Resort
from the developer for $6500.

That same day, Mr. Kvech met with

Wilson to let him know “I would like to start improving Burchinal
Road . . . so that my builder could start building my cabin before
the winter.” (Dkt. No. 73-22 at 7). Wilson agreed and, sometime
thereafter, provided a key for the gate on Beebalm Court to Mr.
Kvech’s contractor.
Significantly, Wilson resigned as general manager of the
Resort on May 15, 2012. Nevertheless, Mr. Kvech’s contractor began
repairing the drop-off and improving Burchinal Road between Beebalm

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Court and the state line, and had incurred $6135 in costs as of
May 21, 2012.

(Dkt. No. 78-3 at 20).

On May 23, 2012, Mr. Kvech, apparently still unaware of
Wilson’s resignation,

e-mailed

agreement

his

drafted

by

Wilson a

attorney,

who

proposed
had

used

right-of-way
the

Gainer

Agreement as a template, and had inserted material information from
a survey paid for by Mr. Kvech. In the e-mail, Mr. Kvech requested
Wilson to “have Alpine Lake’s attorney review the enclosed Right of
Way Agreement . . . and then the association President can sign and
send back to me.”

(Dkt. No. 73-17 at 1).

He further advised that

ALPOA’s attorney “can also modify [the proposed agreement] in any
way they [sic] feel appropriate.”

Id.

As evidenced by the following e-mail from May 27, 2012, sent
by Schiffbauer to the other board members, the board was aware of
Mr. Kvech’s proposed right-of-way agreement and the construction
underway on Burchinal Road:
About 2 weeks ago there were several truckloads of gravel
being brought in to Alpine. I saw one and inquired if
someone was building.
I was told it was going to
Burchinal Trail. I thought that the Shaffer/Gainer bunch
were improving their access.
As it turns out, Jim
[Wilson] apparently agreed to let this new land owner in
Maryland to [sic] access his property this way. A letter

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
just came in5 - found it today on Jim’s desk - addressing
this issue. It appears to be a deed for right of way.
I will review it tomorrow and seek counsel from Buddy
Turner. I also told Grace to see me tomorrow. I don’t
know if said owner has any agreement with Shaffer/Gainer
bunch. I will try to get answers tomorrow.
(Dkt. No. 87-1 at 1).

The following day, another board member,

Charles Clark, replied:
[T]he work commenced at the end of Beebalm Ct the 18th or
19th of May. I asked Jim [Wilson] about it then and he
said it was one of the areas adjacent to Alpine Lake
property to which a land owner had easement access to his
property via Alpine Lake roads. There was no discussion
about any document being signed or the scope of work to
take place on the property.
Id.
Another board member, Fred Issenock (“Issenock”), who took
over for Schiffbauer as president of ALPOA in June 2012, also had
noticed the construction, and had ordered security to “stop all the
trucks coming in.”

(Dkt. No. 83-2 at 3).

According to Issenock,

this “stopped the process,” effectively blocking Mr. Kvech’s access
to the right-of-way easement on Burchinal Road.

Id. at 4.

On June 25, 2012, Mr. Kvech e-mailed Issenock, advising him of
the dealings between himself and Wilson.

5

As a result of that e-

On the e-mail that was turned over in discovery, the words “just
came in” are stricken, and a handwritten note explains that the “letter”
referenced the e-mail had been there “for some time.” (Dkt. No. 87-1 at
1).

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
mail, Mr. Kvech met with the ALPOA board on June 25, 2012.
Although it is unclear exactly what transpired at that meeting, on
the same day, Mr. Kvech sent Isennock another e-mail, asserting
that, “based on the facts and circumstances (previous use of
Burchinal Rd., fence, Oral Agreement with Jim, etc.) that it is
almost certain that a Court would grant a ROW.”
1).

(Dkt. No. 73-19 at

He cautioned that, “[i]f we are in Court . . . it will be up

to the Court to decide the terms of the ROW agreement.”

Id.

On July 12, 2012, the board sent a letter to Mr. Kvech’s
attorney, advising that it had convened and “unanimously voted not
to grant Mr. Kvech the right of way requested in his correspondence
dated May 23, 2012.”

(Dkt. No. 73-20 at 1) (emphasis in original).

During meetings on July 20, 2012, and October 19, 2012, the board
twice more voted to deny subsequent requests for a right-of-way
made by Mr. Kvech.
B.

Procedural Background
In March 2013, the Kvechs filed a complaint,6 alleging that

ALPOA had breached its oral agreement to grant them a right-of-way

6

The Kvechs originally filed their complaint in the United States
District Court for the District of Maryland, but because the case
involves West Virginia realty, Judge Motz transferred it to this Court
on October 24, 2013.

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
easement.

The sole remedy sought under each of the first four

counts is specific performance of the putative agreement.

The

fifth count asserts a violation of the West Virginia Consumer
Credit and Protection Act (the “WVCCPA”) and seeks damages of
$500,000. Notably, although the Kvechs did not demand a jury trial
in their complaint,

ALPOA demanded a jury in its answer to the

complaint.
On November 10, 2014, ALPOA filed the instant motion for
summary

judgment,

arguing

that:

(1)

Wilson

lacked

actual

or

apparent authority to convey an easement to Mr. Kvech; (2) the
parties never formed a binding agreement; (4) the statute of frauds
bars the enforcement of any agreement; (5) judicial estoppel
precludes the Kvechs’ breach of contract claim; and (6) the Kvechs
cannot recover damages under the WVCCPA.7

The motion is fully

briefed and ripe for review.
II. STANDARD OF REVIEW
Summary
documents,

judgment

is

electronically

appropriate
stored

7

where

the

information,

“depositions,
affidavits

or

Although ALPOA also argues that Mrs. Kvech is not a proper party
to this case, that issue has no bearing on whether ALPOA breached an
agreement with Mr. Kvech, which, for the reasons discussed below, is the
only remaining claim in this case.

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
declarations,

stipulations

.

.

.,

admissions,

interrogatory

answers, or other materials” show that “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law.”

Fed R. Civ. P. 56(a), (c)(1)(A).

When ruling on

a motion for summary judgment, the Court reviews all the evidence
“in the light most favorable” to the nonmoving party.

Providence

Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.
2000).

The Court must avoid weighing the evidence or determining

the truth and limit its inquiry solely to a determination of
whether genuine issues of triable fact exist.

Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

nonexistence of genuine issues of fact.
477 U.S. 317, 323 (1986).

and

of

establishing

the

Celotex Corp. v. Catrett,

Once the moving party has made the

necessary showing, the nonmoving party “must set forth specific
facts showing that there is a genuine issue for trial.”

Anderson,

477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the
nonmoving party will not prevent the entry of summary judgment; the

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GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
evidence

must

be

such

that

a

rational

reasonably find for the nonmoving party.

trier

of

fact

could

Id. at 248–52.

III. DISCUSSION
The legal issues in this case center around whether Mr. Kvech
had a binding easement agreement for a right-of-way with ALPOA,
and, if so, whether that agreement can and should be enforced. The
first of these questions involves disputed factual issues that will
have to be resolved by a jury.
whether

a

right-of-way

The second question, particularly

easement

should

be

enforced,

involves

equitable considerations to be weighed by the Court only after a
jury has determined whether a binding contract existed.

Finally,

as discussed below, the Court finds no merit in the Kvechs’ claim
for damages under the WVCCPA.
A.

Wilson’s Authority to Grant an Easement
ALPOA contends that Wilson lacked any authority to bind it to

a right-of-way easement agreement.

Under West Virginia law, “[a]

principal is bound by acts of an agent if those acts are either
within the authority the principal has actually given his agent, or
within the apparent authority that the principal has knowingly
permitted the agent to assume.”

Clint Hurt & Assocs., Inc. v. Rare

Earth Energy, Inc., 480 S.E.2d 529, 535 (W. Va. 1996) (per curiam)
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GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(quoting Thompson v. Stuckey, 300 S.E.2d 295, 299 (W. Va. 1983)).
Here, there is no dispute that Wilson, as the general manager of
the Resort, was an agent of ALPOA, the principal.

The relevant

question is whether he had actual or apparent authority to bind
ALPOA to a right-of-way easement agreement with Mr. Kvech.
1. Actual Authority
ALPOA urges that its governing documents “establish that the
general manager did not have authority to grant access to adjacent
properties,” and that “this authority rests solely with the Board
of Directors.”
to

look to

(Dkt. No. 83 at 6).

the

board’s

Indeed, there is good reason

governing documents

in

examining the

question of actual authority.
In Clint Hurt, the Supreme Court of Appeals of West Virginia
was asked to determine whether an “Additional General Partner,” as
an agent of the partnership, had actual authority to bind the
partnership to a contract. 480 S.E.2d at 534-35.

In answering the

question, the court relied exclusively on “the plain language of
the partnership agreement,” which stated that “Additional General
Partners have delegated all of their authority as General Partners,
except as specifically provided for in the Partnership Agreement,
to the Managing General Partner and have no authority to bind the
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Partnership or other Partners.” Id. at 535 (emphasis in original).
Based on that language, the court concluded that the agent lacked
actual authority to bind his principal, the partnership, to a
contract.

Id.

In Clint Hurt, the partnership agreement expressly denied
authority

to

the

additional

general

partners

to

bind

the

partnership in contract. ALPOA points to a provision in its bylaws
that delegates to the board the power of “[a]dopting and publishing
rules governing the use of those parts of the Subdivision owned by,
or under the control of, the Association.”8

(Dkt. No. 73-3 at 38).

Because this provision is not an express denial of the general
manager’s authority to bind ALPOA in contract, however, it does not
fit the Clint Hurt analysis.
Rather, the issue here is whether Wilson believed he had the
actual authority to contract with Mr. Kvech.

“An agent acts with

actual authority when, at the time of taking action that has legal
consequences for the principal, the agent reasonably believes, in
accordance with the principal’s manifestations to the agent, that
the principal wishes the agent so to act.”

8

Restatement (Third) of

ALPOA has not presented any rules promulgated by the board that
would affect Wilson’s actual authority to bind ALPOA in contract.

18

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1:13CV242

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Agency § 2.01 (2006) (cited by Ashland Facility Operations, LLC v.
N.L.R.B., 701 F.3d 983, 990 (4th Cir. 2012)).
There

is

no

dispute

that

Wilson

knew

he

lacked

actual

authority to bind ALPOA to a right-of-way easement agreement with
Mr. Kvech.

As he explained, “the general manager could make the

contract and write it up, but the contract had to be signed by the
president of the board of directors and the secretary.”

(Dkt. No.

73-4 at 9). Again, he stated, “[t]he contract is only binding when
it’s signed by the president of the association and the secretary.”
Id. at 24.

Thus, Wilson had no actual authority to bind ALPOA to

a right-of-way easement agreement.
2. Apparent Authority
Despite no dispute about Wilson’s actual authority to bind
ALPOA to a right-of-way easement agreement with Mr. Kvech, material
questions of fact exist as to whether Wilson possessed apparent
authority to do so.

Unlike actual authority, which looks to the

reasonable belief of the agent, apparent authority concerns the
reasonable belief of the third party.

“Apparent authority is the

power held by an agent or other actor to affect a principal’s legal
relations with third parties when a third party reasonably believes
the actor has authority to act on behalf of the principal and that
19

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
belief

is

traceable

to

the

principal’s

manifestations.”

Restatement (Third) of Agency § 2.03 (2006) (cited by Ashland
Facility Operations, 701 F.3d at 990).

The Supreme Court of

Appeals of West Virginia has explained that “an agent’s apparent
authority is, as to third persons dealing in good faith with the
subject of the agency and entitled to rely upon such appearance,
his real authority.”

All Med, LLC v. Randolph Eng’g Co., 723

S.E.2d 864, 871 (W. Va. 2012) (quoting Gen. Elec. Credit Corp. v.
Fields, 133 S.E.2d 780, 783 (W. Va. 1963)).
It is uncontroverted that, at one of the initial meetings
between Wilson and Mr. Kvech, Schiffbauer was present and told them
that the right-of-way agreement “shouldn’t be a problem.”

As Mr.

Kvech later explained, “[A]fter talking to Jim [Wilson] and the
president [Schiffbauer] saying, shouldn’t be a problem, I thought
I had an agreement and I thought I was dealing with people of
authority.”

(Dkt. No. 73-1 at 19).

Moreover, “no one told me

anything about board approval or a secretary signing.” Id. Wilson
concurred with Mr. Kvech’s interpretation of the conversation with
Schiffbauer, explaining, “[A]t that point in time I think that we
gave Tim the assurances that we didn’t think there would be a
problem with getting a right-of-way.”

20

(Dkt. No. 73-4 at 10).

KVECH, ET AL. v. ALPOA, INC.

1:13CV242

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Based on this evidence, summary judgment on the issue of
Wilson’s apparent authority is inappropriate.

It is for the jury

to determine whether, based on Schiffbauer’s overture, Mr. Kvech’s
belief that Wilson possessed the authority to enter into a binding
right-of-way easement agreement was reasonable.

See Thompson v.

Stuckey, 300 S.E.2d 295, 299 (W. Va. 1983) (concluding that “[i]t
was not improper for the court to submit this question [of apparent
authority] to the jury”).
B.

Formation of an Agreement
Assuming Wilson possessed apparent authority to bind ALPOA,

the question becomes whether any genuine dispute of material fact
exists

concerning

the

formation

of

the

agreement.

Contract

formation of course requires an offer and acceptance. See Dan Ryan
Builders, Inc. v. Nelson, 737 S.E.2d 550, 556 (W. Va. 2012).
Consideration is also an essential element. See First Nat. Bank of
Gallipolis v. Marietta Mfg. Co., 153 S.E.2d 172, 177 (W. Va. 1967).
Finally, “[a] meeting of the minds of the parties is a sine qua non
of all contracts.”

Syl. Pt. 2, Triad Energy Corp. of West

Virginia, Inc. v. Renner, 600 S.E.2d 285, 286 (W. Va. 2004)
(italics in original).

21

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Here, there is evidence of an offer and acceptance. Mr. Kvech
approached Wilson in December 2011 expressing an interest in
gaining access to the Snaggy Road Property through the Resort.
Wilson told him, “[W]e have a right-of-way to that property already
at the backside of Alpine Lake . . . I don’t see any reason why we
shouldn’t be able to give you a right-of-way.”

(Dkt. No. 73-4 at

10). “But,” Wilson continued, “I can’t get you a right-of-way until
you

have

a

deed.”

Id.

Their

conversation

is

evidence

of

a

unilateral parol agreement –- Wilson promised to grant a right-ofway easement if Mr. Kvech purchased a lot in the Resort.
There is also evidence of consideration.

Wilson made a

promise to grant the easement, and Mr. Kvech purchased the lot in
the Resort.

Although ALPOA observes that Wilson purchased the lot

from a third party developer, that transaction indisputably had
been discussed with Wilson and accrued benefits to ALPOA.

For

example, Wilson explained that he was “very interested” in having
somebody purchase the lot on the Maryland border in order to
“secure” the Resort from trespassers.

Id. at 10.

Moreover, when

Mr. Kvech purchased the lot, its status changed from a developer
lot, owing $80 per year in association dues, to a single owner lot,

22

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
owing $875 per year in association dues.
explained, “[y]ou want them to buy a lot.”

Because of that, Wilson
Id. at 15.

Finally, there is more than a scintilla of evidence of a
meeting of the minds as to the contract’s essential terms.

Those

terms were known to the parties as early as their initial meeting
in December 2011, when Wilson apprised Mr. Kvech of all the
requisite restrictions on the easement.

Moreover, during their

January 20, 2012 meeting, Wilson handed Mr. Kvech a copy of the
Gainer Agreement, stating that it “represents the agreed terms.”
(Dkt. No. 73-22 at 4).
Based on this evidence, the Court denies summary judgment to
ALPOA on the Kvechs’ breach of contract claim.

“Generally, the

existence of a contract is a question of fact for the jury.”

Syl.

Pt. 4, Cook v. Heck’s, Inc., 342 S.E.2d 453, 454 (W. Va. 1986).
The question of whether the parties formed a binding agreement is
in dispute and is properly reserved for the jury’s determination.
C.

Specific Performance
Should

a

jury

determine

that

Wilson

possessed

apparent

authority to enter into a right-of-way agreement on behalf of
ALPOA, and that he did in fact enter into such an agreement with
Mr. Kvech, the next question is whether that oral agreement can be
23

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
enforced. Generally speaking, oral agreements for interest in land
are unenforceable under West Virginia’s statute of frauds, which
provides that “[n]o contract for the sale of land, or the lease
thereof for more than one year, shall be enforceable unless the
contract or some note or memorandum thereof be in writing and
signed by the party to be charged thereby, or by his agent.”

W.

Va. Code § 36-1-3.
In

the

case

of

easements,

however,

West

Virginia

law

recognizes that a defendant may be estopped from asserting the
statute of frauds as a defense to enforceability when equity so
demands. See, e.g., Cottrell v. Nurnberger, 47 S.E.2d 454, 458
(1948).

If

determines

a

court

that

the

weighs

the

balance

tips

equitable
in favor

considerations
of

the

and

plaintiff,

specific performance may provide a remedy for a breach of the
parties’ oral agreement. See Brand v. Lowther, 285 S.E.2d 474, 479
(W. Va. 1981) (“The remedy of specific performance of a contract is
not a matter of right in either party, but rests in the sound
discretion of the court, to be determined from all the facts and
circumstances of the case.”).

However, even if equity weighs in

favor of specific performance, that remedy is not available where
legal damages would provide the plaintiff with adequate relief.

24

KVECH, ET AL. v. ALPOA, INC.

1:13CV242

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
See Callaham v. First Nat. Bank of Hinton, 30 S.E.2d 735, 738-39
(W. Va. 1944).
Here, the Kvechs seek an order granting specific performance
of the right-of-way easement on Burchinal Road.
extraordinary

remedy,

enforceable at law.”

the

[Kvechs]

must

Brand, 285 S.E.2d at 479.

“To invoke this

prove

a

contract

Because a jury has

yet to conclude whether an enforceable agreement existed, the Court
must defer any ruling regarding whether specific performance is a
permissible remedy.
D.

Judicial Estoppel
ALPOA further contends that the doctrine of judicial estoppel

precludes the Kvechs from alleging breach of contract. “[J]udicial
estoppel, or preclusion against inconsistent positions, is designed
to protect the integrity of the courts and the judicial process.”
Guinness PLC v. Ward, 955 F.2d 875, 899 (4th Cir. 1992).

“[W]here

a party assumes a certain position in a legal proceeding, and
succeeds in maintaining that position, he may not thereafter,
simply because his interests have changed, assume a contrary
position . . . .”

New Hampshire v. Maine, 532 U.S. 742, 749 (2001)

(alteration in original) (citation omitted). ALPOA argues that Mr.
Kvech took inconsistent positions by representing to the Orphan’s
25

KVECH, ET AL. v. ALPOA, INC.

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Court that the Snaggy Road Property was landlocked at the time he
purchased it, and later explaining in his deposition testimony that
he thought he had an easement prior to purchasing the Snaggy Road
Property.
Mr. Kvech purchased the Snaggy Road Property on March 9, 2012.
Any contract he had with ALPOA was not formed until he purchased a
lot in the Resort; as Wilson told him, “I can’t get you a right-ofway until you have a deed.”

(Dkt. No. 73-4 at 10).

Mr. Kvech did

not purchase a lot until almost one month later, on April 5, 2012.
Thus, notwithstanding his apparent belief that a contract had
formed prior to that date, Mr. Kvech did not take inconsistent
positions.

Moreover, “landlocked” means “[s]urrounded by land,

with no way to get in or out except by crossing the land of
another.” Black’s Law Dictionary (9th ed. 2009). Thus, the Snaggy
Road Property was still landlocked and remains so (with respect to
Mr. Kvech) despite any easement.
ALPOA’s judicial estoppel argument.

26

The Court therefore rejects

KVECH, ET AL. v. ALPOA, INC.

1:13CV242

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
E.

Gist of the Action
To the extent the Kvechs have pled any common law tort claims

in their complaint,9 specifically fraud, such claims are barred by
the gist of the action doctrine, which precludes recovery in tort
where any liability stems from a breach of contract.

See Gaddy

Eng’g Co. v. Bowles Rice McDavid Graff & Love, LLP, 746 S.E.2d 568,
577 (W. Va. 2013). Despite not seeking damages for any common law
tort claims in their complaint, the Kvechs, in their briefs, assert
that they are entitled to recover the cost of their improvements to
Burchinal Road based on ALPOA’s alleged fraud.
There is no dispute that Mr. Kvech intended to absorb the
costs of improving Burchinal Road. (Dkt. No. 73-22 at 3) (“The cost
of improving Burchinal Road . . . would be my responsibility.”).
If ALPOA had not breached the alleged right-of-way agreement, as
the Kvechs allege, they could not assert a right to recover those
costs.

Thus, the costs of the improvements are, by definition,

9

Notably, none of the ad damnum clauses pertaining to the Kvechs’
first four counts seeks damages. Rather, each one requests “that this
Court compel the Defendant by Order of this Court to execute a Right of
Way Deed of Easement and allow access through Alpine Lake to the
Plaintiffs’ property in Maryland.” (Dkt. No. 1 at 7). Only under the
fifth count for a violation of the WVCCPA do the Kvechs seek damages in
the amount of $500,000, as well as “such further and other relief as the
statute may allow.” Id. at 8.

27

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
consequential damages incurred solely as a result of ALPOA’s
alleged breach. See Rice v. Cmty. Health Ass’n, 203 F.3d 283, 28788 (4th Cir. 2000) (quoting Desco Corp. v. Harry W. Trushel Constr.
Co.,

413

S.E.2d

85,

89

(W.

Va.

1991))

(explaining

that

consequential damages occur when the parties “could reasonably have
anticipated” that they “would be a probable result of a breach”).
Because these damages are contractual in nature, they are not
recoverable under a tort theory.
F.

WVCCPA
In Count Five of their complaint, the Kvechs allege that ALPOA

violated

the

WVCCPA,

W.

Va.

Code

§

46A-1-101,

et

seq.,

by

“induc[ing] [them] to purchase the lot number 40 in Alpine Lake as
a condition of granting access to the Snaggy Road property.” (Dkt.
No. 1 at 7).

ALPOA contends that the Kvechs “awkwardly attempt to

fit the facts of this case into the mold of a cause of action under
the [WVCCPA],” and argues that the WVCCPA does not apply to the
Kvechs’ purchase of the lot.

(Dkt. No. 73 at 11).

The WVCCPA provides that “[a]ny person who purchases or leases
goods or services and thereby suffers any ascertainable loss of
money or property, real or personal, as a result of the use or
employment

by

another

person

of
28

a

method,

act

or

practice

KVECH, ET AL. v. ALPOA, INC.

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
prohibited or declared to be unlawful by the provisions of this
article may bring an action” against “the seller or lessor.”
46A-6-106(a).

The

acts

or

practices

declared

unlawful

§
are

“[u]nfair methods of competition and unfair or deceptive acts or
practices.” § 46A-6-104. The “definitions” section of the statute
enumerates sixteen types of misrepresentations that constitute
unfair methods of competition and unfair or deceptive acts or
practices.

§ 46A-6-102(7)(A)-(P).

The Kvechs base their cause of action under the WVCCPA upon
ALPOA’s continuing obligation to provide them with services and
amenities in return for their payment of association dues. (Dkt.
No. 78 at 9). In their complaint, however, they never allege that
ALPOA misrepresented anything with respect to the services it
provides as a homeowners association to its members.

Nor is there

any allegation that ALPOA misrepresented anything about the lot the
Kvechs purchased from the developer who previously had owned it.
Indeed, the only misrepresentation alleged by the Kvechs is
that ALPOA told Mr. Kvech he could use Burchinal Road and then
prevented him from doing so.

ALPOA’s alleged failure to follow

through on its promise, however, does not present a cause of action
rooted in the WVCCPA, as the Kvechs urge. Therefore, because ALPOA

29

KVECH, ET AL. v. ALPOA, INC.

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
did not misrepresent anything about any goods or services it
provided the Kvechs, their claim under the WVCCPA fails.
IV. CONCLUSION
At bottom, this case involves the purported breach of an
alleged oral agreement between ALPOA and Mr. Kvech, as well as the
equitable

considerations

involved

in

determining,

if

such

a

contract was formed, whether specific performance of the right-ofway easement should be enforced.

The facts and allegations do not

support any other claims.
The breach of contract claim, moreover, presents genuine
issues of material fact that will have to be decided by a jury,
including whether Wilson possessed apparent authority to bind ALPOA
in contract, and whether a contract existed.

If a jury finds for

the Kvechs on both of those issues, the Court then will have to
determine whether specific performance is an appropriate remedy.
In conclusion, for the reasons discussed, the Court GRANTS IN
PART and DENIES IN PART ALPOA’s motion for summary judgment.
It is so ORDERED.

30

KVECH, ET AL. v. ALPOA, INC.

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
The

Court

directs

the

Clerk

to transmit

copies

of

Memorandum Opinion and Order to counsel of record.
DATED: February 11, 2015.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

31

this