Dept. of Transp. v. Parkersburg Inn

• Citation: 671 S.E.2d 693
• Decision Date: 05 November 2008
• Docket Number: No. 33882.,33882.
• Parties: WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, Division of Highways, Respondent Below, Appellee, v. PARKERSBURG INN, INC., Petitioner Below, Appellant.
• Court: Supreme Court of West Virginia

671 S.E.2d 693

WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, Division of Highways, Respondent Below, Appellee, v. PARKERSBURG INN, INC., Petitioner Below, Appellant.

No. 33882.

Supreme Court of Appeals of West Virginia.

Submitted October 8, 2008.

Decided November 5, 2008.

Syllabus by the Court

1. "The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties." Syllabus point 6, Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).

2. "A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard." Syllabus point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).

3. "In determining who is an expert, a circuit court should conduct a two-step inquiry. First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify." Syllabus point 5, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995).

4. "Factors to be considered in determining whether the failure to supplement discovery requests under Rule 26(e)([1]) of the Rules of Civil Procedure should require exclusion of evidence related to the supplementary material include: (1) the prejudice or surprise in fact of the party against whom the evidence is to be admitted; (2) the ability of that party to cure the prejudice; (3) the bad faith or willfulness of the party who failed to supplement discovery requests; and (4) the practical importance of the evidence excluded." Syllabus point 5, Prager v. Meckling, 172 W.Va. 785, 310 S.E.2d 852 (1983).

5. "Rule 401 of the West Virginia Rules of Evidence requires the trial court to determine the relevancy of the exhibit on the basis of whether the [exhibit] is probative as to a fact of consequence in the case. The trial court then must consider whether the probative value of the exhibit is substantially outweighed by the counterfactors listed in Rule 403 of the West Virginia Rules of Evidence. ..." Syllabus point 10, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

6. "When a plaintiff does not prevail as to liability, any errors he claims as to the issue of damages are harmless because, without a verdict on the liability issue, the plaintiff is not entitled to any damages." Syllabus point 3, Morris v. Boppana, 182 W.Va. 248, 387 S.E.2d 302 (1989).

Marvin W. Masters, April D. Ferrebee, The Masters Law Firm LC, Charleston, for Appellant.

Leah R. Chappell, Adams, Fisher & Chappell, PPLC, Ripley, Robert B. Paul, West Virginia Department of Transportation, Division of Highways, Charleston, for Appellee.

PER CURIAM:¹

Parkersburg Inn, Inc., appellant/respondent below (hereinafter "the Inn"), appeals an order of the Circuit Court of Wood County denying its motion for a new trial. The case involved a petition filed by the West Virginia Department of Transportation, Division of Highways, appellee/petitioner below (hereinafter "DOH"), to determine whether the Inn was entitled to compensation for damages caused by a road construction project. The issue was submitted to a jury. The jury rendered a verdict in favor of DOH. In this appeal, the Inn contends that the circuit court committed the following errors: (1) giving DOH's Instruction No. 2; (2) permitting a witness to testify as an expert in an area outside of his expertise; (3) prohibiting one of the Inn's witnesses from giving expert testimony; and (4) excluding certain appraisal evidence. After a careful review of the briefs, record submitted on appeal, and listening to the oral arguments of the parties, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

In 2003, the Inn owned and operated a Holiday Inn hotel in Parkersburg, West Virginia, near Interstate 77 and Route 50.² In 2003, DOH engaged in road construction on Route 50 near the Inn's hotel. The construction involved expanding Route 50 from a two-lane highway to a four-lane highway. It also involved altering its location. As a result of the expansion and change in the location of Route 50, a new traffic pattern was initiated on September 8, 2003. That traffic pattern altered the way in which the Inn's hotel could be accessed by patrons.

Subsequent to Route 50 being relocated, the Inn filed a petition for a writ of mandamus to compel DOH to institute a condemnation proceeding against its hotel.³ By order dated October 5, 2004, the circuit court issued the writ compelling DOH to institute a condemnation proceeding. On October 29, 2004, DOH filed a petition to determine whether any diminution in the value of the Inn's hotel resulted from its road construction project that relocated Route 50.

After an extensive period of discovery, the case was tried before a jury on January 30, 2007. During the trial, both parties presented testimony from numerous lay and expert witnesses regarding the effect of the road construction project on the Inn's hotel. The evidence presented by the Inn suggested, in essence, that the road construction project and the relocation of Route 50 by DOH caused the Inn's hotel to sustain a loss in business. On the other hand, DOH presented evidence that factors other than its road construction project and relocation of Route 50 caused a decrease in the Inn's hotel income. For example, there was evidence that, around the time at issue, the Inn began having lower than normal occupancy rates. Also, a new hotel and conference center was opened in the vicinity, and a competing hotel completed extensive renovations. Additionally, the Inn raised its room rates. The jury considered all of the evidence. The jury returned a verdict in favor of DOH on February 14, 2007.⁴ Subsequent to the trial court's denial of the Inn's post-trial motion for a new trial, the Inn filed this appeal.

II. STANDARD OF REVIEW

We are asked to review the circuit court's denial of the Inn's post-trial motion for a new trial. Our reviewing standard for denial of a new trial motion was articulated in Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995), as follows:

We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

See also Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976) ("Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.").

One of the issues raised by the Inn involves a jury instruction that was tendered by DOH. In Syllabus point 6 of Tennant this Court set out the standard of review of a trial court's jury instructions as follows:

The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties.

See also Doe v. Wal-Mart Stores, Inc., 210 W.Va. 664, 671, 558 S.E.2d 663, 670 (2001).

The remaining issues raised by the Inn involve the admissibility of certain evidence. This Court has made clear that "[a] party challenging a circuit court's evidentiary rulings has an onerous burden because a reviewing court gives special deference to the evidentiary rulings of a circuit court." Gentry v. Mangum, 195 W.Va. 512, 518, 466 S.E.2d 171, 177 (1995). As a result of such deference, "[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard." Syl pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). See also Syl. pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995) ("Absent a few exceptions, this Court will review evidentiary ... rulings of the circuit court under an abuse of discretion standard.").

With these reviewing standards in place, we will now address the merits of the issues raised by the Inn.

III. DISCUSSION

A. DOH's Instruction No. 2

The first issue presented by the Inn involves an instruction tendered by DOH, modified by the trial court, and read to the jury. With respect to the giving of jury instructions, this Court has held that

"[a] trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misle[d] by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy."

Keesee v. General Refuse Serv., Inc., 216 W.Va. 199, 209, 604 S.E.2d 449, 459 (2004) (quoting Syl. pt. 4, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995)). We have also long held that "`[i]t will be presumed that a trial court acted correctly in giving ... instructions to the jury, unless it appears from the record in the...