Timothy Haberkam and Cynthia Berkemeier v. Michael Carleton

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
TIMOTHY HABERKAM April 7, 2026
and CYNTHIA BERKEMEIER, ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
Defendants Below, Petitioners OF WEST VIRGINIA

v.) No. 25-ICA-359 (Cir. Ct. of Morgan Cnty. Case No. CC-33-2024-C-58)

MICHAEL CARLETON,
Plaintiff Below, Respondent

MEMORANDUM DECISION

Petitioners Timothy Haberkam and Cynthia Berkemeier appeal the Circuit Court of
Morgan County’s August 11, 2025, order granting Respondent Michael Carleton’s motion
for summary judgment. In its order, the circuit court determined that Mr. Carleton held an
express easement granting him a right of way across petitioners’ property. The court’s
order also entered an injunction prohibiting petitioners from interfering with Mr. Carleton’s
access thereto. Mr. Carleton filed a response.1 Petitioners filed 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.

In this right of way dispute, the relevant facts are as follows. Mr. Carleton purchased
his property on July 22, 2016 (“Carleton Property”), and petitioners purchased their
property on December 19, 2019 (“Haberkam Property”). According to Mr. Carleton, since
August of 2021, petitioners have been obstructing or blocking his access to his deeded right
of way through various means. According to the record, this included the following conduct
by petitioners: the use of tree stumps, brush, and other debris to block Mr. Carleton’s
access, as well as sending Mr. Carleton threatening letters and contacting law enforcement
to make false trespassing claims against him.

Mr. Carleton filed a complaint for declaratory judgment on October 15, 2024,
seeking a declaration that he held an express right of way and a permanent injunction to
prohibit petitioners from interfering with his use and enjoyment of the right of way.

1
Petitioners are self-represented. Mr. Carleton is represented by Richard G. Gay,
Esq.
1
Mr. Carleton filed his motion for summary judgment on June 26, 2025. Petitioners
filed a combined amended motion to dismiss and response in opposition to summary
judgment on July 3, 2025. Mr. Carleton filed a reply on July 8, 2025. Thereafter, the circuit
court determined that the matter was ripe for ruling and entered its order granting Mr.
Carleton summary judgment and injunctive relief. In its order, the circuit court made the
following observations regarding the chains of title for the respective properties:

Carleton Property:

By deed dated October 10, 1975, Charles E. Salmon and Lillian Viola Salmon
conveyed approximately 84 acres to Coolfont Development Company (“Coolfont Deed”)
along with the following right of way:

Together with that right of way named in the description of Parcel No. 1 in
the deed from Renzie G. Spriggs to Charles E. Salmon, the grantor herein, as
recorded in Deed Book 53, Page 370, and more particularly described as
follows[.]

***

And together with the use of an existing right of way, said right of way
existing along both sides of the following described centerline:

Beginning at a point at the end of 361.38 ft. on the first line of the land to be
conveyed herein, said point being in the west line of lands of Winifred Kilby
as recorded in Deed Book 68, page 331, and running thence across the lands
of said Winifred Kilby S. 48° 28’ 10” E 23.91 ft. to a point in the center of
the existing lane and thence S 75° 01’ 20” E 258.17 ft. to a point in the line
of Nora E. Keel as recorded in Deed Book 72, page 507, and running thence
across said land of Nora E. Keel S 75° 01’ 20” E 60.83 ft. to a point, thence
with the centerline S 78° 30’ 50” E 138.66 ft. to a point, thence with the
centerline N 85° 35’ 00” E 124.00 ft. to a point, thence with the centerline S
82° 32’50” E 7.62 ft. to a point in the line of Ruth Hartwick as recorded in
Deed Book 63, page 278 and running thence across said land of Ruth
Hartwick S 82° 32” 50” ft. to appoint, thence with the centerline S 64° 15’
50” E 278.32 ft. to the center of West Virginia Secondary road 9/10.

On July 22, 2016, Michael Carleton purchased the Carleton Property from Berkeley
Springs Development LLC (“Carleton Deed”). The Carleton Property consists of
approximately forty-four acres, which was part of same property previously conveyed
under the Coolfont Deed. The Carleton Deed reserves the same right of way as the Coolfont
Deed, using verbatim language. With respect to this case, the circuit court found that the
subject right of way begins at Mr. Carleton’s property and extends across the Haberkam

2
Property (formerly the Winifred Kilby property) to state secondary road CR 9/10, which is
known as Cold Run Valley Road. The circuit court observed that this was further reflected
by the July 11, 2024, recorded survey of Mr. Carleton’s Property performed by professional
surveyor Cynthia A. Born (“Surveyor Born”). The circuit court further noted that according
to Surveyor Born, a portion of the subject right of way is described by deed as having a
width not to exceed twenty feet. Surveyor Born also observed that the average width of the
right of way’s traveled surface is sixteen feet.

Haberkam Property:

By deed dated August 17, 1981, Winifred Kilby and Robert E. Kilby conveyed to
Judith K. Kaplan (“Kaplan Deed”) a 3.09-acre tract. Attached to the Kaplan Deed was the
Resurvey Plat of Winifred Kilby, Plat No. 81078, which references the Coolfont Deed and
depicts the existence and location of the subject right of way. The circuit court included a
copy of the plat in its order.

By deed dated March 12, 2004, Kevin O’Neill and Gladden P. O’Neill purchased
from Max Zweig and Sheri Zweig (“O’Neill Deed”) the same 3.09-acre property
previously transferred by the Kaplan Deed. The O’Neill Deed refers to the subject right of
way, and states in pertinent part:

Excepting, however, a right of way of no specific width, mentioned in that
deed conveying a tract of land, lying to the west of the herein described 3.09
acre tract, to Coolfont Development Company, a West Virginia corporation,
from Charles E. Salmon and Lillian Viola Salmon, husband and wife, dated
October 10, 1975 and recorded in the aforesaid Clerk’s Office in Deed Book
93, Page 118. Said right of way lies along the following described center line:
Beginning at a point in the last line of the herein[ ]described 3.09 acre tract,
which point lies 33º 40’W, 361.4 feet from the Point of Beginning of said
3.09 acre tract; thence, extending across said 3.09 acre tract, S 47º 18’ E, 23.9
feet; thence, S 73º 51’ E, to the east, or third line of said 3.09 acre tract.

On December 19, 2019, petitioners purchased the Haberkam Property from Kevin
J. O’Neill and Gladden P. O’Neill (“Haberkam Deed”). It is the same 3.09-acre property
that was formerly owned by Winifred Kilby and referenced in the Carleton Deed. The
Haberkam Deed states that Parcel Number One (1.5 acres) and Parcel Number Two (1.586
acres) are subject to the Coolfont’s deeded right of way and provides as follows:

Subject to a right of way of no specific width, mentioned in that deed
conveying a tract of land, lying to the west of the herein described 1.5[-]acre
tract, to Coolfont Development Company, a West Virginia corporation, from
Charles E. Salmon and Lillian Viola Salmon, dated October 10, 1975 and
recorded in the Office of the Clerk of the County Commission of Morgan

3
County, West Virginia, in Deed Book 93 at Page 118 which right of way is
centered on the second, or “N. 74º 54’ 15” W” line of the herein described
1.5[-]acre tract.

And, together with that non-exclusive right of way to Route 9/10 which was
conveyed to Max Zweig and Sheri Zweig by Nora E. Keel by deed dated
March 5, 2004 and recorded in the aforesaid Office in Deed Book 207 at page
780.

Additionally, the Haberkam Deed references the April 21, 2006, Berkeley Land
Surveyor Plat No. 2006 072, which is entitled A Division of the Land of Kevin J. O’Neill
and Gladden P. O’Neill. The plat shows that the subject right of way runs from the Carleton
Property and across the Haberkam Property to Cold Run Valley Road. According to the
plat, the right of way is a “non-exclusive [right of way] not to exceed 20’ in width to [Cold
Run Valley Road].” The circuit court included a copy of the plat in its order.

Mr. Carleton’s motion for summary judgment also included the affidavit of Charles
William Harmison, which contained his title report and opinion on the Carleton and
Haberkam properties. According to the affidavit, Mr. Harmison is a licensed West Virginia
attorney who has practiced law for over fifty years and performed thousands of title
examinations. In his report, Mr. Harmison stated that based upon his title examination, the
chains of title for the Carleton Property and Haberkam Property clearly reference Mr.
Carleton’s deeded right of way, which grants him ingress and egress from his property to
Cold Run Valley Road through the Haberkam Property. Specifically, Mr. Harmison found
that the Haberkam Deed expressly excepted the right of way, and the Carleton Deed
expressly grants the right of way. Mr. Harmison also opined that without the right of way,
the Carleton Property would be landlocked.

Based upon the record, the circuit court determined that there was no genuine issue
of material fact regarding the existence or location of the subject right of way. The court
found that the deeds of record within Mr. Carleton’s and petitioners’ chains of title plainly
set forth that Mr. Carleton held an express easement for a right of way across the Haberkam
Property in satisfaction of the requirements of West Virginia Code § 36-3-5a (2013).2 In

2
As it relates to this appeal, we observe that West Virginia Code § 36-3-5a(a) states:

Any deed or instrument that initially grants or reserves an easement or right-
of-way shall describe the easement or right-of-way by any of the following:
(1) Metes and bounds; (2) Specification of centerline: Provided, That any
deed or instrument, executed on or after September 1, 2013, that initially
grants or reserves an easement or right-of-way using the centerline method
must also include the width; (3) Station and offset; or (4) Reference to an
4
support, the court noted that right of way has existed since the Coolfont Deed was executed
in 1975 and it has continued to be incorporated in subsequent conveyances within the
parties’ chains of title. The court found that the right of way’s existence and location was
further corroborated by the opinions of Surveyor Born and Mr. Harmison. Next, the circuit
court determined that based upon Surveyor Born’s assessment, the right of way across the
Haberkam Property is twenty feet wide with an average drivable surface width of sixteen
feet.

Next, the circuit court rejected the trespass and abandonment claims asserted by
petitioners in their answer to the complaint. Here, the court found there was no viable
trespass claim because of the express easement, which by its very design, “authorizes a
trespass.” Quintain v. Columbia Nat. Res., 210 W. Va. 128, 136, 556 S.E.2d 95, 103 (2001).
Further, an express easement “obligates the possessor not to interfere with the uses
authorized by the easement.” Farley v. Farley, 215 W. Va. 465, 468, 600 S.E.2d 177, 180
(2004) (quoting Restatement (Third) of Property § 1.2(1) (2000)). Similarly, the court
found no merit in petitioners’ argument that Mr. Carleton had abandoned the right of way
because of non-use and existing physical obstructions. On this issue, the court explicitly
noted that every impediment to Mr. Carleton’s use of the right of way were caused by the
deliberate actions of petitioners with the intent to displace Mr. Carleton’s access to his
property through the right of way. The circuit court further observed that an express
easement cannot be extinguished by any duration of non-use. See Orlandi v. Miller, 192
W. Va. 144, 149, 451 S.E.2d 445, 450 (1994).3 As such, the court concluded that petitioners
could not carry their burden of establishing that Mr. Carleton abandoned his express
easement.

Thereafter, the court found that petitioners failed to create a genuine issue of
material fact regarding Mr. Carleton’s easement and right of way, and as a result, they

attached drawing or plat which may not require a survey or instrument based
on the use of the global positioning system which may not require a survey.
3
The Orlandi decision states:

There is law in this State that an existing right-of-way is not defeated by mere
non-use. Wooldridge v. Coughlin, 46 W. Va. 345, 33 S.E. 233 (1899).
Additionally, as late as 1988, the Court indicated that while easements
created equitably may be extinguished by acts including abandonment,
easements by grant, such as the easement claimed in the present case, may
not. See note 5 of Lyons v. Lyons, 179 W. Va. 712, 371 S.E.2d 640 (1988),
which cites Moyer v. Martin, 101 W. Va. 19, 131 S.E. 859 (1926).

Id. (citation modified).

5
could not meet their burden to overcome Mr. Carleton’s motion for summary judgment.
The circuit court’s order also contained certain findings regarding petitioners’ intended
actions to block Mr. Carleton’s lawful access to his right of way. As a result, the court
entered a mandatory and permanent injunction prohibiting petitioners from further
interference and directed them immediately to remove all obstructions upon the right of
way. Lastly, the court noted that Mr. Carleton could file an appropriate motion for an award
of his reasonable costs and attorney’s fees and that the court “may” consider the same. This
appeal followed.

As a preliminary matter, we observe that petitioners raise eight assignments of error.
Because many of the alleged errors are interrelated, we find it appropriate to consolidate
and restate those arguments for the purposes of this appeal. See Tudor’s Biscuit World of
Am. v. Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231, 237 (2012) (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 *1 n.2 (W. Va. June 16, 2017)
(memorandum decision) (restating assignments of error where they involve clearly related
issues); Perry v. Ravenscroft, No. 24-ICA-134, 2024 WL 5002991, at *3 (W. Va. Ct. App.
Dec. 6, 2024) (memorandum decision) (consolidating and restating petitioner’s
assignments of error on appeal). Restated, the issues on appeal are whether the circuit court
erred by (1) granting Mr. Carleton summary judgment and (2) imposing a permanent
injunction. We will address these issues separately.

We first address the circuit court’s summary judgment determination that Mr.
Carleton holds an express easement for a right of way through the Haberkam Property. It
is well established that our standard of review for this issue is de novo. Syl. Pt. 1, Painter
v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of summary
judgment is reviewed de novo.”). In conducting a de novo review, this Court applies the
same standard for granting summary judgment that a circuit court must apply, and that
standard states, “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.” Id. at 190, 451 S.E.2d at 756, syl. pt. 2.
(citation modified). “Summary judgment is appropriate if, from the totality of the evidence
presented . . . the nonmoving party has failed to make a sufficient showing on an essential
element of the case that it has the burden to prove.” Syl. Pt. 2, Williams v. Precision Coil,
Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995). “The party opposing summary judgment must
satisfy the burden of proof by offering more than a mere scintilla of evidence and must
produce evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.” Id.
at 60, 459 S.E.2d at 337 (citation modified).

On appeal, petitioners offer several arguments to challenge the circuit court’s
summary judgment ruling. However, as detailed below, we find that each of these
arguments fail to establish error.

6
First, petitioners argue that the circuit court’s summary judgment ruling was
premature because it was issued prior to the scheduled pre-trial hearing date of September
4, 2025, and the close of the evidentiary record. As a result, petitioners assert that the circuit
court denied them the opportunity to present all their evidence in violation of their due
process rights. We find no merit in this argument.

In petitioners’ brief to this Court, they merely offer a short conclusory statement in
support of this argument without citation to the record or accompanying analysis to support
their position. For example, while we presume that the deadlines referenced by petitioners
were included in the court’s scheduling order, no order reflecting those deadlines was
included as part of the appendix on appeal, and if it was, petitioners have failed to cite to
the record to alert the Court to its existence. Also, petitioners do not refute that prior to the
circuit court’s decision, they filed a response opposing Mr. Carleton’s motion for summary
judgment and they do not cite any precedent to support their contention that a court lacks
the authority to rule upon a motion for summary judgment once the parties have filed briefs
arguing their positions on the matter. Contra W. Va. R. Civ. P. 6(d) (“In general, once the
parties have completed filing memoranda and responses . . . the circuit court shall either
schedule argument or decide the motion based on the materials submitted.”); Gilhuys v.
Hardy Cnty. 911 Ctr., No. 23-759, 2025 WL 1779845, at *3 (W. Va. June 27, 2025)
(memorandum decision) (“Although we have urged caution in granting summary judgment
before the completion of discovery, doing so does not constitute error in every
circumstance.”). Moreover, outside of their vague assertion, petitioners have failed to
establish through the record that they filed an affidavit or declaration for additional
discovery prior to the court’s ruling on summary judgment. See W. Va. R. Civ. P. 56(d).4
As such, petitioners have not established that they were denied a meaningful opportunity
to oppose summary judgment.

At best, petitioners have presented a skeletal argument, which lacks any reasonable
specificity or meaningful explanation. This is insufficient to establish error for appellate
review. See State v. Kaufman, 227 W. Va. 537, 555 n.39, 711 S.E.2d 607, 625 n.39 (2011)
(citation modified) (“A skeletal argument, really nothing more than an assertion, does not
preserve a claim.”); State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996)
(“Although we liberally construe briefs in determining issues presented for review, issues

4
Prior to the 2025 amendments to the West Virginia Rules of Civil Procedure, this
rule was known as Rule 56(f). In its amended form, Rule 56(d) states:

When facts are unavailable to the nonmovant. If a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may: (1) defer considering the
motion or deny it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.

7
which are not raised, and those mentioned only in passing but are not supported with
pertinent authority, are not considered on appeal.”); W. Va. R. App. P. 10(c)(7) (“The
argument must contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were presented
to the lower tribunal. The Intermediate Court . . . may disregard errors that are not
adequately supported by specific references to the record on appeal.”); see also State v.
Gibson, No. 23-556, 2025 WL 3287585, at *2 (W. Va. Nov. 25, 2025) (memorandum
decision) (reiterating that self-represented petitioners must comply with Rule 10(c)(7));
Smith v. Ball, No. 24-ICA-26, 2024 WL 5003294, at *4 (W. Va. Ct. App. Dec. 6, 2024)
(memorandum decision) (citation modified) (“Indeed, courts should strive to ensure that
the diligent self-represented party does not forfeit any substantial rights by inadvertent
omission or mistake. However, ultimately, the self-represented litigant must bear the
responsibility and accept the consequences of any mistakes and errors.”); Haske v. Judge,
No. 23-ICA-50, 2024 WL 794601, at *3 (W. Va. Ct. App. Feb. 27, 2024) (memorandum
decision) (affirming circuit court’s order and finding self-represented petitioner failed to
preserve objections below for appellate review).

Likewise, as our Supreme Court of Appeals (“SCAWV”) has held:

An appellant must carry the burden of showing error in the judgment of
which he complains. This Court will not reverse the judgment of a trial court
unless error affirmatively appears from the record. Error will not be
presumed, all presumptions being in favor of the correctness of the judgment.

Syl. Pt. 5, Morgan v. Price, 151 W. Va. 158, 150 S.E.2d 897 (1966). An appellate 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).

In this case, petitioners have failed to affirmatively establish error on this issue, and
as a result, we decline to find reversible error based upon the timing of the circuit court’s
entry of summary judgment.

Next, petitioners assert that the circuit court’s summary judgment ruling is
fundamentally flawed for various reasons. For instance, they argue that because every deed
in Mr. Carleton’s chain of title was not put into evidence, the circuit court accepted
incomplete and inadmissible deed evidence and misinterpreted the deeds to erroneously
conclude that Mr. Carleton held the easement. Petitioners also claim that the court failed
to consider relevant evidence of abandonment and non-use, which establishes that “the
alleged road has been impassable and unused for decades” and creates a genuine issue of
material fact. Lastly, they allege that Mr. Harmison was biased and unqualified to offer a
title opinion in this case because he is a personal acquaintance of Mr. Carleton and, thus,
his title examination opinion is not admissible as expert testimony under Rule 702 of the
West Virginia Rules of Evidence. Collectively, petitioners contend that these errors

8
establish that Mr. Carleton did not meet his burden of proving the existence of an easement,
requiring reversal of the circuit court’s decision. However, petitioners make these
assertions without properly supporting them with further analysis and citation to the record.
Therefore, the Court is not persuaded by any of these contentions.

Instead, we note that in its order, the circuit court set forth factual findings,
established precedent, and statutory authority applicable to the legal issue presented at
summary judgment. After reconciling the matter, the court determined that Mr. Carleton’s
motion was properly supported by affirmative evidence establishing that there was no
genuine issue of material fact. Subsequently, the burden shifted to petitioners to oppose
summary judgment through more than a mere scintilla of evidence. To meet this burden,
the SCAWV has stated:

If the moving party makes a properly supported motion for summary
judgment and can show by affirmative evidence that there is no genuine issue
of a material fact, the burden of production shifts to the nonmoving party
who must either (1) rehabilitate the evidence attacked by the moving party,
(2) produce additional evidence showing the existence of a genuine issue for
trial, or (3) submit an affidavit explaining why further discovery is necessary
as provided in Rule 56(f)5 of the West Virginia Rules of Civil Procedure.

Williams, 194 W. Va. at 56, 459 S.E.2d at 333, syl. pt. 3. The nonmoving party must also
present evidence that contradicts the showing of the moving party by pointing to specific
facts demonstrating that there is a trial-worthy issue which is not only a genuine issue but
also an issue that involves a material fact. Id. at 60, 459 S.E.2d at 337 (emphasis added).
Furthermore, the nonmoving party cannot create a genuine issue of material fact through
mere speculation or building of one inference upon another. Id. at 61 n.14, 459 S.E.2d at
338 n.14.

Therefore, to resist Mr. Carleton’s motion, petitioners were required to either
rehabilitate the evidence, produce additional evidence showing a genuine issue of material
fact, or file an affidavit for further discovery. However, petitioners failed to do so.
Specifically, there is no affidavit in the record from petitioners seeking further discovery,
and their response in opposition to summary judgment neither rehabilitates the evidence,
nor produces additional evidence to sufficiently establish a genuine issue of material fact.
Instead, in opposition to Mr. Carleton’s motion, petitioners present skeletal arguments and
conclusory statements in support of their overarching contention that the circuit court
should have viewed the facts differently and ruled in their favor. As previously established,
this is insufficient to defeat a motion for summary judgment, let alone establish cognizable
error on appeal. See Williams, 194 W. Va. at 61, 459 S.E.2d at 338 (citation modified)
(“The mere existence of some alleged factual dispute between the parties will not defeat an

5
See n.4, supra.
9
otherwise properly supported motion for summary judgment; the requirement is that there
be no genuine issue of material fact.”); Harbaugh v. Coffinbarger, 209 W. Va. 57, 62, 543
S.E.2d 338, 343 (2000) (citation modified) (“The party opposing the summary judgment
motion must do more than simply show that there is some metaphysical doubt as to the
material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).”);
Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196 W. Va. 692, 700, 474
S.E.2d 872, 880 (1996) (“Rule 56 does not impose upon the circuit court a duty to sift
through the record in search of evidence to support a party’s opposition to summary
judgment. Nor is it our duty to do so on appeal.”). As such, we cannot conclude that the
circuit court erred in its determination that summary judgment was appropriate.6 7

Petitioners’ final challenge on appeal centers on the circuit court’s entry of the
permanent and mandatory injunction enjoining them from interfering with Mr. Carleton’s
access to the right of way. Our standard of review is as follows:

Unless an absolute right to injunctive relief is conferred by statute, the power
to grant or refuse or to modify, continue, or dissolve a temporary or a
permanent injunction, whether preventive or mandatory in character,
ordinarily rests in the sound discretion of the trial court, according to the facts
and the circumstances of the particular case; and its action in the exercise of

6
On appeal, petitioners also make the conclusory argument that the circuit court
erred because it “fail[ed] to consider pending defense motions and evidence.” However,
petitioners failed to articulate a properly developed argument on this issue for appellate
review. Notably, petitioners do not identify the defenses and motions with specificity or
cite to their existence within the record and offer no authority to support their position.
Therefore, this argument will not be addressed.
7
Petitioners’ brief also includes a request that this Court accept into evidence and
consider “supplementary evidence consisting of official state deeds, historical land records,
and supporting documentation” proving that Mr. Carleton has never possessed any lawful
right of way across the Haberkam Property. Petitioners claim that this is the evidence that
they intended to submit prior to the court ruling upon the motion for summary judgment.
We decline this invitation. The Court is not a trier of fact, and our review is limited to the
proceedings below as it necessarily forms the record on appeal. See W. Va. R. App. P. 6.
Pursuant to Rule 56(c) of the West Virginia Rules of Civil Procedure, petitioners were
required to present evidence below to withstand summary judgment, and because there is
no indication from the record that this documentation was not readily available at the
summary judgment stage, this evidence should have been included with petitioners’
response in opposition to Mr. Carleton’s motion. Despite their status as self-represented
litigants, petitioners bear the consequences of their mistakes.

10
its discretion will not be disturbed on appeal in the absence of a clear showing
of an abuse of such discretion.

Syl. Pt. 1, Baisden v. W. Va. Secondary Schs. Activities Comm’n., 211 W. Va. 725, 568
S.E.2d 32 (2002) (citation modified).

On this issue, petitioners maintain that it was an abuse of discretion for the circuit
court to issue a permanent injunction without the benefit of a hearing or testimony, based
upon its finding that petitioners engaged in bad faith. They contend that this violates “Rule
8 of the Rules of Appellate Procedure and West Virginia equitable precedent.” However,
like petitioners’ other arguments in this appeal, outside of this vague assertion, they offer
no substantive argument or citation to the record to support their position. Therefore, we
decline to disturb the circuit court’s discretionary determination that entry of a permanent
injunction was appropriate in this case.8

Accordingly, we find no error and affirm the circuit court’s August 11, 2025, order.

Affirmed.

ISSUED: April 7, 2026

CONCURRED IN BY:

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

8
As part of this argument, petitioners also contend that the court erred by reserving
the right to award Mr. Carleton his costs and attorney’s fees. However, the court did not
make any award of such costs and fees to Mr. Carleton, but rather, the court noted that it
“may” consider such an award at a later date upon the filing of a proper motion. Thus, until
such time as those events occur, and Mr. Carleton receives a judgment for costs and
attorney’s fees against petitioners, it is not subject to appeal.
11