No. 32055 _ William
R. Via v. Ralph Beckett and Joan Beckett
Albright, Chief Justice, dissenting:
I respectfully dissent to the majority opinion
because I believe that a genuine issue
of material fact exists concerning the location of the property line in this
case. As the majority acknowledges, the language of the deed description for
the Beckett parcel contains discrepancies. While both the Via deed and the Beckett
deed specify the boundary at N 10° 30' W 150 feet, the Beckett deed description
contains other language calling the boundary line into question. Specifically,
the Beckett deed description states that the boundary is parallel to a boundary
line along the Tobin Stover/Daniel Boone lot. That statement is inconsistent
with the reference to N 10° 30' W 150 feet. Further, the Beckett deed description
references certain monuments and markers, creating additional inconsistencies
regarding the location of the disputed boundary. Even the surveys submitted into
evidence resulted in contradictory findings regarding the location of the Via/Beckett
Despite the existence of those inconsistencies,
the majority of this Court concludes that the circuit court was correct in granting
summary judgment. In providing plenary review of a grant of summary judgment, the
benefit of the doubt is to be given to the nonmoving party. Taylor v.
Culloden Pub. Serv. Dist.,
214 W.Va. 639, 644, 591 S.E.2d
197, 202 (2003). Both the circuit court and this Court must draw any
permissible inference from the underlying facts in the light most favorable
to the party opposing the motion. Painter v. Peavy
, 192 W.Va.
189, 192, 451 S.E.2d 755, 758 (1994). Furthermore, this Court explained in Crain
, 178 W.Va. 765, 364 S.E.2d 778 (1987), that [i]f there
is any evidence in the record from any source from which a reasonable inference
in the nonmovant's favor may be drawn as to a material fact, the moving party
is not entitled to a summary judgment. 178 W.Va. at 769, 364 S.E.2d at
782. A court does not have a right to try issues of fact; a determination
can only be made as to whether there are issues to be tried. Hanlon
, 195 W.Va. 99, 105, 464 S.E.2d 741, 747 (1995).
A subtle inclination may exist to grant summary
judgment in particularly weak cases. As observed in Nance v. Ball
So.2d 35 (Fla. App. 1961),
cases are clearly disposable by summary judgment. There are also marginal cases
posing colorable issues which the trial court may consider so weakly supported
as to indicate the futility of a full hearing on the merits. In such a case,
where adherence to the rule of caution results in a denial of summary judgment,
the court may feel that there has been an unjustified extension of fruitless
litigation. Our own experience attests an occasional impulse to amputate at once
rather than face the prospect of surgery by painful stages, but herein lies the
occasional margin of error.
134 So.2d at 37. In analyzing the issue of the propriety summary judgment, [c]aution
and discernment should go hand in hand where the power to enter summary judgment
or decree is exercised, for such a power wields a dangerous potential which
could have the effect of
trespass against fundamental and traditional processes for determining the
rights of litigants. Humphrys v. Jarrell, 104 So.2d 404, 408 (Fla.
App. 1958) (citations omitted).
In the present case, while the jury may well
have resolved the issues in precisely the same manner as those issues were resolved
through the summary judgment mechanism, the fact remains that it is the jury's
question to answer, not the court's question. Based upon my opinion that a genuine
issue of material fact exists regarding the location of the property boundary
in the present case, I believe that summary judgment was improper in this case.
I therefore respectfully dissent.
I am authorized to say that Justice Starcher
joins me in this dissent.