Gerber v. Cabot Oil & Gas Corp., 15-0220
| Decision Date | 07 December 2015 |
| Docket Number | No. 15-0220,15-0220 |
| Court | West Virginia Supreme Court |
| Parties | Michael Gerber, Plaintiff Below, Petitioner v. Cabot Oil & Gas Corporation and Columbia Gas Transmission Corporation, Defendants Below, Respondents |
Petitioner Michael Gerber, pro se, appeals the final judgment order of the Circuit Court of Kanawha County, entered February 19, 2015, following a jury verdict in favor of respondents Cabot Oil & Gas Corporation ("Cabot Oil") and Columbia Gas Transmission Corporation ("Columbia Gas"). Respondents, by counsel Timothy M. Miller and Briana J. Marino, filed a response, and petitioner filed a reply.
The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the 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.
Petitioner's and respondents' predecessors-in-interest entered into an oil and gas lease in 1948 with regard to real property located at 1833 Brown's Creek Road in St. Albans, West Virginia.1 The lease allows respondents to explore, extract, and store natural gas in the subsurface of petitioner's property. In exchange for those mineral rights, the lease provides that petitioner receives a royalty payment and free gas for the house situated on the property subject to certain conditions. The free gas provision of the lease states, in pertinent part, as follows:
Lessee agrees that the surface owner and/or owners thereof, residing on said premises, . . . may use, in one dwelling house located on said tract of land, 100,000 cubic feet of gas per year. . . . This privilege is granted upon condition that such user shall furnish and install the necessary line, regulators and all other equipment and appliances necessary to receive and control said gas and assume all risk in connection therewith[.]
(emphasis added) When petitioner purchased his property in 2011, he wanted to receive the free gas to which the lease entitles him through the same connection used by his most immediate predecessors-in-interest. Respondents informed petitioner that he could no longer use that connection to receive gas because they no longer owned the pipeline to which it connects. Petitioner objected to laying a new connection to a pipeline currently owned by Respondent Cabot Oil that is located farther away from his property.
Consequently, because petitioner was not receiving free gas, petitioner sued respondents for breach of the 1948 lease. Trial of the matter occurred on February 9, 2015, through February 11, 2015. Petitioner represented himself at the trial with the aid of his son.2 Petitioner testified on his own behalf and presented exhibits and the testimony of two of respondents' agents. Respondents' counsel cross examined petitioner and respondents' agents; respondents did not call any witnesses of their own. At the close of evidence, petitioner proposed no jury instructions, while respondents' counsel tendered six proposed instructions to the circuit court. The circuit court rejected four of respondents' proposed instructions and gave two instructions to the jury (as modified by the court). When the circuit court asked petitioner if he objected to the verdict form, petitioner responded, "No. I agree with this verdict form." The circuit court inquired a second time to ensure that petitioner had the correct verdict form. Petitioner stated, The circuit court preserved any objections petitioner might have had to the jury instructions. After being instructed and hearing the parties' closing arguments, the jury returned a verdict in respondents' favor. On the verdict form, the jury indicated that respondents did not breach the 1948 lease. On February 19, 2015, the circuit court entered an order memorializing the jury's verdict. Petitioner now appeals.
Circuit court did not abuse its discretion
in the manner by which it allowed petitioner's son to help him during trial.
Petitioner complains that the circuit court improperly refused to allow him to use his son as an interpreter during trial. Respondents counter that while the circuit court did not permit petitioner's son to speak to the jury on petitioner's behalf, the court allowed petitioner's son to aid him. Because this was a ruling with regard to court procedure, we review it only for an abuse of discretion. See Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 232, 455 S.E.2d 788, 791 (1995). Upon on our review of the trial transcript, we agree with respondents that petitioner knew English sufficiently well to present his case to the jury. Petitioner notes that he has an accent. However, at the beginning of the trial, the circuit court informed the jury that if they could notunderstand petitioner's spoken words, they could raise their hand and the court would have petitioner repeat what he said. Respondents are also correct that there were occasions when the circuit court allowed petitioner's son to help him. During his cross-examination, the circuit court granted petitioner's request that his son be allowed to read the lease's free gas provision and translate to him because his son was "faster" at reading English. At the close of evidence, outside of the jury's presence, the circuit court permitted petitioner's son to state the relief petitioner would like to receive from the jury because petitioner was struggling to put it into the right words. Upon our review, we conclude that the circuit court did not abuse its discretion in the manner by which it allowed petitioner's son to help him during trial.
Petitioner waived any objection to the verdict form and
petitioner's arguments with regard to jury instructions lack merit.
Petitioner contends that the verdict form was not clear as to whether the jury could have found both respondents liable for breach of the 1948 lease—or just one of them. "The rule in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they forget their lines, they will likely be bound forever to hold their peace." State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996). When the circuit court asked petitioner if he objected to the verdict form, petitioner responded, "No. I agree with this verdict form." The circuit court inquired a second time to ensure that petitioner had the correct verdict form. Petitioner stated, Thus, we conclude that petitioner waived any objection to the verdict form.
The circuit court preserved any objections petitioner might have had to the jury instructions. First, petitioner questioned how the circuit court would characterize a 1981 secondary agreement Respondent Columbia Gas had with his predecessors-in-interest about their receipt of free gas. The circuit court informed petitioner that it was not going to refer to the 1981 agreement in the jury instructions. Second, petitioner objected to many of respondents' proposed instructions that seemingly included legal rulings against petitioner's interest. We find that the fact that those instructions appear to include legal conclusions constituted one reason why the circuit court rejected those instructions and gave the jury only two instructions (as modified by the court). Therefore, we determine that the objections to the jury instructions raised with the circuit court lacked merit.
On appeal, petitioner also contends that the circuit court did not sufficiently instruct the jury as to the law...
To continue reading
Request your trial