Richard Phebus and Katherine Phebus v. Gerald Smith and Martha Smith

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
February 27, 2026
RICHARD PHEBUS and KATHERINE PHEBUS,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Defendants Below, Petitioners INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 25-ICA-240 (Cir. Ct. Hardy Cnty. Case No. CC-16-2021-P-36)

GERALD SMITH and MARTHA SMITH,
Plaintiffs Below, Respondents

MEMORANDUM DECISION

Petitioners Richard Phebus and Katherine Phebus (the “Phebuses”) appeal the
Circuit Court of Hardy County’s May 15, 2025, order denying their motion to alter or
amend and the circuit court’s December 27, 2024, order requiring the Phebuses to pay
Respondents Gerald Smith and Martha Smith (the “Smiths”) one-half of the costs to
maintain a private roadway. The Smiths filed a joint response.1 The Phebuses 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 orders is appropriate
under Rule 21 of the Rules of Appellate Procedure.

In 2003, the Smiths purchased their land from the heirs of Woodrow Dove. In 1956,
Mr. Dove received an express right-of-way from his neighbors to use for general ingress
and egress to and from his property, and Mr. Dove and his brothers constructed the road
that became known as Shoestring Hollow Drive. When it was built, Shoestring Hollow
Drive was wide enough for one vehicle and was rough.

In 1981, a deed from Mr. Dove to the Phebuses conveyed a right-of-way across
Shoestring Hollow Drive for the purposes of ingress and egress between the Phebuses’
79.04-acre tract of land and Hardy County Route 3/2 (CR 3/2). The 1981 deed provides, in
pertinent part:

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The Phebuses are represented by G. Kevin Judy II, Esq. The Smiths are represented
by Kirk H. Bottner, Esq.

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It is further understood and agreed on behalf of the parties hereto that the
Grantees herein, on behalf of themselves, their heirs, successors and assigns,
upon accepting this right[-]of[-]way deed, agree to pay one-half of the cost
of the maintenance of said roadway from Hardy County Route 3/2 to the
point on said roadway where said roadway leaves the 79.04-acre tract or
parcel of real estate.

In 2004, the Smiths upgraded Shoestring Hollow Drive by widening the road to the
width of two lanes, installing 18-inch culverts, adding topcoats of stone, adding a crown,
and adding side ditches. At that time, the Smiths were unaware that the Phebuses had a
right-of-way over Shoestring Hollow Drive as the Phebuses used another road, named
Harmony Springs Lane, as their primary means of access to CR 3/2. The Smiths did not
discuss the improvements with the Phebuses. Once the Smiths upgraded the roadway, the
Phebuses built a cut-over road between Harmony Springs Lane and Shoestring Hollow
Drive and started using Shoestring Hollow Drive as their primary means of access to CR
3/2.

In 2020, the Phebuses installed locked gates on their property, blocking the Smiths
from accessing Shoestring Hollow Drive. On August 27, 2021, the Smiths filed this
declaratory judgment action against the Phebuses seeking, among other things, a
determination of the parties’ rights to Shoestring Hollow Drive and a determination of
whether the Phebuses were obligated to pay one-half of the costs to maintain the roadway.
A bench trial was held on April 20-21, 2023, and in its March 29, 2024, Order Following
Bench Trial, the circuit court determined that the Phebuses and the Smiths both had the
nonexclusive rights to use Shoestring Hollow Drive for access to CR 3/2, and that the
Phebuses were obligated to pay one-half of the roadway’s maintenance costs. The court
further ordered that the parties confer to determine a reasonable amount the Phebuses owe
for those maintenance costs.2 The parties were unable to reach an agreement and on
September 13, 2024, the circuit court held an evidentiary hearing to determine the amount
of maintenance costs due. In its December 27, 2024, order, the circuit court determined
that beginning in 2025, both parties would be responsible to equally share in one-half of
the reasonable costs to maintain Shoestring Hollow Drive. The circuit court further
determined that no maintenance costs were owed for the period 2004-2020, and that the
Phebuses owed half of the maintenance costs actually incurred by the Smiths, if any, from
July 1, 2020, through December 27, 2024.

Pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure, the Phebuses
filed a motion to alter or amend the December 27, 2024, order claiming that requiring the
Phebuses to pay one-half of the road maintenance costs was contrary to established West

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The Phebuses did not appeal the March 29, 2024, order.

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Virginia law. In its May 15, 2025, order, the circuit court denied the motion, and this appeal
of the May 15, 2025, and December 27, 2024, orders followed.

The Supreme Court of Appeals of West Virginia (“SCAWV”) provides our standard
of review for the orders on appeal:

The standard of review applicable to an appeal from a motion to alter or
amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same
standard that would apply to the underlying judgment upon which the motion
is based and from which the appeal to this Court is filed.

Syl. Pt. 1, Wickland v. Am. Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657 (1998).
The December 27, 2024, order is the underlying judgment on appeal, and it results from a
bench trial on the issue of road maintenance costs. Thus, we review the December 27, 2024,
order and the ultimate disposition for abuse of discretion and factual findings under a
clearly erroneous standard. Questions of law are reviewed de novo. See Syl. Pt. 1, Pub.
Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538 (1996) (“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.”). In addition we recognize that
“[a] motion under Rule 59(e) of the West Virginia Rules of Civil Procedure should be
granted where: (1) there is an intervening change in controlling law; (2) new evidence not
previously available comes to light; (3) it becomes necessary to remedy a clear error of law
or (4) to prevent obvious injustice.” Syl. Pt. 2, Mey v. Pep Boys-Manny, Moe & Jack, 228
W. Va. 48, 717 S.E.2d 235 (2011). Mindful of these standards, we address the parties’
arguments.3

In their first assignment of error, the Phebuses assert that the circuit court erred in
denying their Rule 59(e) motion and in finding that they owe maintenance costs to the
Smiths because that ruling was against established West Virginia law, which bars
individuals from expanding or improving a right-of-way to the detriment of the servient
estate. Conversely, the Smiths argue that improvements to Shoestring Hollow Drive did
not change the nature of the roadway or how the parties use it. Thus, the Phebuses have not

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While the Phebuses attached both the underlying December 27, 2024, order and
the May 15, 2025, order denying their motion to alter or amend to their notice of appeal,
in the assignments of error in their brief, the Phebuses only address the May 15, 2025, order
denying their motion to alter or amend. Accordingly, our substantive review is limited to
that order. See Goff v. Smith, No. 23-ICA-299, 2024 WL 4052866, at *4 (W. Va. Ct. App.
Sept. 4, 2024) (memorandum decision) (noting that the Court would not address the merits
of order attached to notice of appeal but not addressed in the petitioner’s brief).
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established the necessity to remedy a clear error of law or the need to prevent an obvious
injustice as Rule 59(e) requires. We agree with the Smiths.

In the case of Lowe v. Guyan Eagle Coals, Inc., the SCAWV held “[n]o use may be
made of a right-of-way different from that established at the time of its creation so as to
burden the servient estate to a greater extent than was contemplated at the time of the
grant.” Syl. Pt. 2, Lowe v. Guyan Eagle Coals, Inc., 166 W.Va. 265, 273 S.E.2d 91 (1980).
The Phebuses argue that at the time of the 1981 deed that requires them to pay half of the
maintenance costs, Shoestring Hollow Drive was one lane and rough, but that the upgrades
transformed Shoestring Hollow Drive into a much different roadway. The Phebuses further
argue that the improvements have caused additional burden to their servient estate because
they now are required to pay ongoing maintenance costs for a road that is not the same as
it was in 1981. However, the holding in Lowe indicates that the Phebuses must show a
change in the roadway’s use, not just that it looks different today. The record demonstrates
that current use of Shoestring Hollow Drive is for the same purpose as contemplated in the
1981 right-of-way deed—general ingress and egress to and from Hardy CR 3/2. Moreover,
the holding in Lowe indicates that the Phebuses must further show an additional burden to
their servient estate. The record demonstrates that the upgrades to Shoestring Hollow Drive
do not burden the Phebuses’ servient estate but rather the improvements benefit the
Phebuses’ property by providing a more functional and reliable means of access to Hardy
CR 3/2. Indeed, after the improvements were completed, the Phebuses built a cut-off from
Harmony Springs Lane to Shoestring Hollow Drive, and they began using Shoestring
Hollow Drive to access HCR 3/2 after the upgrades were completed. For these reasons, we
conclude that the Phebuses have not established a change in the use of Shoestring Hollow
Drive that creates an additional burden to their servient estate and thus, have not established
the need to remedy a clear error of law or to prevent an obvious injustice as required under
Rule 59(e).

In their second assignment of error, the Phebuses assert that the circuit court erred
in denying their Rule 59(e) motion because “the doctrine of laches or some other such
defense regarding abandonment of a contractual clause” should apply. The Smiths, on the
other hand, argue that laches was not raised below and cannot be raised for the first time
on appeal. We agree with the Smiths.

Generally, we will not consider nonjurisdictional questions raised for the first time
on appeal. See Whitlow v. Bd. of Educ. of Kanawha Cnty., 190 W. Va. 223, 226, 438 S.E.2d
15, 18 (1993) (“Our general rule in this regard is that, when nonjurisdictional questions
have not been decided at the trial court level and are then first raised before this Court, they
will not be considered on appeal.”); PITA, LLC v. Segal, 249 W. Va. 26, 40, 894 S.E.2d
379, 393 (Ct. App. 2023) (noting that as a general rule, an appellate court will not consider
an issue raised for the first time on appeal). Exceptions to this general rule include issues
involving subject matter jurisdiction, plain error, or important constitutional questions,

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none of which are applicable here. The Phebuses admit that laches was not explicitly raised
below but they contend it was raised implicitly in briefings to the circuit court and at
hearings. Based on our review, the record does not support the Phebuses’ assertion that
laches was raised below by implication. Since we find that laches was not raised below,
we will not consider the question of laches for the first time on appeal.

Based on the foregoing, we find no error in the circuit court’s conclusion that the
Phebuses are obligated to pay one-half of the reasonable costs to maintain Shoestring
Hollow Drive starting in 2025 and one-half of the actual maintenance costs incurred, if
any, between July 1, 2020, and December 27, 2024. Further, we conclude that the Phebuses
failed to establish that the circuit court erroneously denied their Rule 59(e) motion.

Accordingly, the circuit court’s December 27, 2024, and May 15, 2025, orders are
affirmed.

Affirmed.

ISSUED: February 27, 2026

CONCURRED IN BY:

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

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