Wheeling alley easement case sees lots of legal wrangling

WHEELING – There hasn’t been a lot of legal action taken in a lawsuit about the right to use a downtown Wheeling alley, but there seems to have been a good deal of behind-the-scenes movement.

Ohio Circuit Judge Joseph E. Barki filed an order February 17 denying a preliminary injunction by the plaintiffs in the case who say a 200-year-old agreement gives them the right to use an alley that runs between two buildings owned by a law firm, which recently erected barriers to keep traffic from using the alley.

In December, the three plaintiffs – the law firm of Phillips Gardill Kaiser & Altmeyer, construction company Shaeffer & Madama and investment firm Fort Henry Capital – filed their complaint against Teresa Toriseva and Josh Miller, owners of Toriseva Law.

Since the original filing, the case docket shows a lot of legal maneuvering.

The case originally was assigned to Ohio Circuit Judge Jason Cuomo, but it was transferred December 19 to Ohio Circuit Judge David J. Sims. That came the same day a Supreme Court order from then-Chief Justice Bill Wooton, apparently filed in response to a sealed December 9 filing asking to disqualify Cuomo from the case.

On December 10, an amended complaint was filed with Fort Henry Capital being removed as a plaintiff. The plaintiffs’ original claim for adverse possession also was removed in the amended complaint.

On December 23, the case again was transferred from Sims to Barki. That means Sims, unlike Cuomo, voluntarily recused himself from the case.

Moving into 2026, the defendants filed their answer to the complaint January 5 denying the allegations and seeking to have the case dismissed.

On January 8, a motion was filed by the plaintiffs’ attorneys to seal the defendants’ motion to disqualify and to file under seal plaintiffs’ response to that. That motion was granted the same day, and a motion response was filed the following day.

On January 13, an order granting a motion for permission to substitute and withdraw was filed. The next day, original defense attorneys Bob Fitzsimmons and Rocky Fitzsimmons were removed from the docket as counsel for the plaintiffs. They were replaced by Jacob C. Altmeyer and Jeffrey D. Kaiser from Phillips Gardill Kaiser & Altmeyer were listed as new defense counsel.

The plaintiffs filed the motion for preliminary injunction January 23, and Barki filed an order January 27 setting a hearing date for February 11. The defendants filed their response to the motion for preliminary injunction February 4, and the plaintiffs filed their response to that five days later.

Following last week’s hearing, Barki issued his order Monday denying the plaintiffs’ preliminary injunction and set a hearing on the final injunction for May 4.

In his five-page order, Barki said neither side produced an “analogous case.”

He said while he agrees the plaintiffs were harmed by the barriers, the relatively short timetable “mitigates against a finding that they are irreparably harmed.”

Toriseva and Miller declined to comment on the case.

All of the parties are owners of downtown Wheeling properties in what is known as Square Number 15. Toriseva and Miller purchased 1308 and 1314 Chapline Street in 2023 to use as a new location for Toriseva Law. The alley runs between the two Toriseva Law buildings.

In the original complaint, the plaintiffs say Square 15 is intersected by a 10-foot-wide alley from Eoff Street to Chapline Street. It runs adjacent to the northern border of the plaintiffs’ properties and the northern border of the defendants’ Southern Parcel as well as adjacent to the southern border of the defendants’ Northern Parcel.

“Said alley has existed for nearly 200 years and was created and established by agreement between Noah Zane, Thomas Paull and Andrew Scott dated August 6, 1829,” the complaint states. “Additionally, the existence of said alley was confirmed in 1865 by deed dated September 15, 1865. …

“Plaintiffs and their predecessors in title have enjoyed the unobstructed, open, continuous, exclusive, adverse and notorious use of the alley for over 200 years. The alley has and continues to be maintained by plaintiffs and is used regularly for both vehicular and pedestrian traffic by plaintiffs, the general public and, at times, has been utilized by emergency vehicles.”

On November 8, the plaintiffs say the defendants placed 30-inch-high concrete jersey barriers on the east boundary of their Southern Parcel extending from the southeast corner of the parcel to the southeast corner of their Northern Parcel.

The plaintiffs say the barriers are “intentionally and maliciously blocking the alley from vehicular and pedestrian traffic, thereby disrupting and preventing the use of the alley enjoyed and shared by the plaintiffs, their predecessors in title and the general public for nearly 200 years and further jeopardizing the safety of the entire neighborhood.”

On November 10, the plaintiff law firm sent a letter to the defendants requesting they partially remove the barricade to allow vehicular and pedestrian access through the alley. Four days later, those parties met to discuss the situation. But Phillips Gardill Kaiser & Altmeyer say the defendants have refused to remove the barriers.

The plaintiffs say the installation of the barriers is a “clear violation” of the recorded easement and 1829 agreement. They say the barriers have created health and safety issues to all neighbors. They also say the plaintiffs and the general public will suffer irreparable harm if it isn’t remedied.

“Defendants’ continued refusal to remove the concrete barriers and continued obstruction of plaintiffs’ use of the alley constitutes an intentional, bad faith and vexatious denial of plaintiffs’ clearly existing civil rights,” the complaint states.

When they purchased the property, Toriseva said she and Miller relied on a title search from a reputable experienced attorney who found no encumbrances. She said they also have a current commercial survey showing no alley.

“This complaint touches on the legal issues the court will grapple with but barely scratches the surface of what’s actually going on with this downtown Wheeling city block,” Toriseva previously told The West Virginia Record. “There are more critical facts, disputes, necessary parties, counterclaims and third-party claims, all of which we will put before the court when we answer within our 30-day window.

“The specific dispute as to the alley centers on a 200-year-old handwritten paragraph from the Commonwealth of Virginia before West Virginia statehood and is further complicated by a title cleaned by government sale/transfer of the Phillips Gardill property from 1980 to 1990.”

The two buildings that house Toriseva Law previously were Kepner Funeral Home. The building at 1314 Chapline Street is known as the Thomas Paull House, which was built in the 1830s. The building at 1308 Chapline Street is known as the Lynda Speidel House, which was built in the 1880s.

“Built during the 1830s, this stately home is a reminder of the time when the 1300 block of Chapline Street was an elegant neighborhood,” an online description of the Thomas Paull House states. “This simple two-and-a-half story brick building displays Federal symmetry and some modest Greek Revival detailing. …

“A good sense of the presumed original appearance of the Fort Henry Club can be inferred from the facade of this mansion next door. Its five-bay facade has windows trimmed with plain Greek Revival lintels, while a small Ionic portico protects the central entrance. Knee, or frieze-band, windows in the frieze above light the top story.”

“The paired, two-story polygonal bays remain from the 1880s house, but the Ionic portico between them was added later,” an online summary of the Lynda Speidel House states. “The third floor, also added later, has fenestration, an entablature, and a parapet similar to those of the L.S. Good House. The original structure and later alterations blend more harmoniously here than is often the case.”

The plaintiffs seek a declaratory judgment confirming the 1829 agreement is valid and grants them a legally enforceable right to use the alley, an order and preliminary injunction requiring the defendants to remove all obstructions from the alley, an order permanently enjoining the defendants from restricting vehicular and pedestrian traffic in the alley, an order restoring the alley to its previous physical condition and state of use as well as an order finding the defendants’ actions were intentional, wrongful, malicious, vexatious and in bath faith.

They also seek court costs and attorney fees.

The plaintiffs also had arranged to tender $10,000 in bond to compensate the defendants for any conceivable financial damage, but Barki returned that to the plaintiffs in this week’s order. The bond, dated December 3, was signed by James C. Gardill, Dennis M. Madama and David H. McKinley from Fort Henry Capital, which he owns with his father and former U.S. Representative David B. McKinley.

Ohio Circuit Court case number 25-C-231