Gomez v. Kanawha Cnty. Comm'n

• Decision Date: 03 June 2016
• Docket Number: No. 15–0342,15–0342
• Citation: 787 S.E.2d 904,237 W. Va. 451
• Parties: Loretta Lynn Gomez, Petitioner v. Kanawha County Commission, Respondent
• Court: West Virginia Supreme Court

237 W.Va. 451

787 S.E.2d 904

Loretta Lynn Gomez, Petitioner

v.Kanawha County Commission, Respondent

No. 15–0342

Supreme Court of Appeals of West Virginia.

Submitted: April 27, 2016

Filed: June 3, 2016

Shannon M. Bland, Esq., Bland and Bland Attorneys at Law, Charleston, West Virginia, Counsel for the Petitioner.

Charles R. Bailey, Esq., Kelly C. Morgan, Esq., Daniel T. LeMasters, Esq., Bailey & Wyant, P.L.L.C., Charleston, West Virginia, Counsel for Respondent.

Chief Justice Ketchum :

Condemnation actions are sui generis , unique and peculiar, when considered against other civil actions.The West Virginia Constitution provides that, when land is taken or damaged for a public use, just compensation shall, “when required by either of the parties ... be ascertained by an impartial jury of twelve freeholders.”¹In this appeal from the Circuit Court of Kanawha County, we are asked to examine a circuit court's entry of summary judgment against a landowner in a condemnation proceeding.

As we discuss below, the parties and the circuit court acknowledged that the landowner had asked for a jury trial, and that the landowner was prepared to offer her opinion as to the value of the land taken.The circuit court therefore erred in granting summary judgment against the landowner.

I.FACTUAL AND PROCEDURAL BACKGROUND

The respondent, the Kanawha County Commission(“the Commission”), is a member of the Central West Virginia Regional Airport Authority (“the airport authority”).²The airport authority owns and operates Yeager Airport.

Southwest of Yeager Airport, and near the flight path of planes using the airport's runway, was a high hill in the Coal Branch Heights neighborhood of Charleston.The high hill was about 200 feet higher than Yeager Airport's runway.In 2012, at the behest of the Federal Aviation Administration, the Commission and the airport authority started a project to remove the top of the high hill.³The project (called the “Runway 5 Approach Ground Obstruction Removal Project”) required the removal of some 1.1 million cubic yards of rock and dirt from the high hill and its placement at an alternative location.⁴

This is a condemnation action by the Commission to take a 10–acre tract of land near Coal Branch Heights called the “Nutter Farm.”The Commission determined that the Nutter Farm was the best site to deposit the material removed from the high hill.

William McClellan Nutter originally owned the farm, but he died in 2009.Ownership of the Nutter Farm was inherited by his three adult children: the petitioner, Loretta Lynn Gomez, and his two sons, William Watson Nutter and Charles Curtis Nutter.Each child inherited an undivided one-third interest.

The land surrounding the Nutter Farm had previously been developed into a business park called “Northgate.”After Mr. Nutter's death, the developer of Northgate⁵ offered to purchase the farm from the three children.On November 13, 2012, the two Nutter sons signed an option agreement to sell their one-third interests to the Northgate developer; the developer later consummated the sale and paid $58,333.33 to each son.Gomez, however, refused to sell her one-third share.

The Commission later purchased the sons' two-thirds interest in the Nutter Farm from the Northgate developer, paying the developer the same amount it paid: $58,333.33 for each one-third interest.On June 14, 2013, the Commission filed a condemnation petition against Gomez, seeking to acquire a fee simple interest in her remaining one-third undivided interest in all 10 acres of the Nutter Farm.The Commission stated that it sought to permanently take the land “for the purpose of improving, maintaining, and operating Yeager Airport.”Gomez objected to the petition, claiming the Commission's stated reasons did not constitute a proper “public use” for taking her land.

The circuit court determined that the Commission's stated purposes for taking the property were a proper public use, and then appointed condemnation commissioners⁶ to determine the value of her one-third undivided interest in the Nutter Farm.On October 15, 2013, after visiting the property and hearing testimony by the Commission's appraiser, the condemnation commissioners valued Gomez's one-third share of the land at $33,335.The circuit court thereafter permitted the Commission to pay $33,335 into court, and in an order dated December 12, 2013, granted the Commission immediate possession of the Nutter Farm.The date of the entry of this order is the “date of taking” by the Commission.⁷

Counsel for Gomez timely objected to the condemnation commissioners' valuation and demanded a jury trial.The circuit court established a schedule requiring eight months of discovery to be completed by December 1, 2014, and set a date for trial in February 2015.

Following the completion of discovery, the Commission made a motion for summary judgment.The Commission asserted that, while Gomez had retained an appraiser, the appraiser had failed to offer any opinion about the fair market value of the Nutter Farm.The Commission asked the circuit court to strike the appraiser's testimony.The Commission also asked the circuit court to strike Gomez's “claims,” because she had failed to attend her deposition.The Commission conceded in oral argument to the circuit court that Gomez could testify to the value of her interest in the property, but asked the circuit court to take judicial notice of the condemnation commissioners' fair market valuation of $33,335.

In an order dated January 9, 2015, the circuit court struck the testimony of Gomez's expert and struck Gomez's claims.In a later order, dated March 12, 2015, the circuit court granted the Commission's motion for summary judgment and took judicial notice of the condemnation commissioners' valuation of the property.The circuit court found that evidence “could have [been] submitted at trial as to the value of the take” through “the testimony of Gomez.”Still, the circuit court noted that counsel for Gomez agreed that summary judgment was preferable to a trial, because “trying the case was nothing more than preserving the record” so that Gomez could challenge the circuit court's pretrial rulings on appeal.

Gomez now appeals the circuit court's summary judgment order.In so doing, she also challenges five pretrial rulings of the circuit court that we discuss below.⁸

II.STANDARD OF REVIEW

We review a circuit court's entry of summary judgment de novo .⁹A circuit court should grant summary judgment “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.”¹⁰

Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.¹¹

Several of the issues raised by Gomez in her appeal challenge the circuit court's interpretation of the law of condemnation.Questions of law are subject to a de novo review by this Court.¹²

III.ANALYSIS

Petitioner Gomez asserts that the circuit court erred in five different pretrial rulings, rulings that then culminated in a summary judgment ruling in favor of the respondent Commission.Gomez asserts the circuit court erred: (1) in finding, as a matter of law, that the Commission took the Nutter Farm for a public use, and in refusing to submit the question of public use to a jury; (2) in preventing her from arguing that the highest and best use of the Nutter Farm (and thereby, its highest fair market value) was by the Commission as a dump site for dirt; (3) in excluding her expert; (4) in striking her claims when she failed to appear at her deposition; and (5) in taking judicial notice of the condemnation commissioners' valuation of her land.We examine these five pretrial rulings in that order before addressing the circuit court's summary judgment order.

A.Public Use is a Question of Law

Gomez argues that the circuit court erred when it found that the Commission took the Nutter Farm for a “public use.”Gomez's counsel cites us to no law supporting her argument, but she contends the question is one of fact for a jury.

Gomez's argument is basically this: the Commission stated in its condemnation petition that it sought to permanently take the Nutter Farm “for the purpose of improving, maintaining, and operating Yeager Airport.”Gomez, however, sought to dismiss the petition and argued below that the Commission's taking of the land was not a proper public use, largely because the land was not connected to or being used as an airport.Further, she asserted the Commission only temporarily used the land as a site to dump dirt and rock; once construction was completed, the land would no longer be used by the Commission (even though covered by 1.1 million cubic yards of material).Overall, Mrs. Gomez argued that a jury should be allowed to decide whether the taking of the Nutter Farm was for a legitimate public purpose.

In several orders, the circuit court refused to dismiss the Commission's condemnation petition.¹³The circuit court made two rulings that Gomez challenges.First, the circuit court concluded, as a matter of law, that the Commission's reason for taking the Nutter Farm was an appropriate public use.Second, the circuit court refused to allow Mrs. Gomez to make her argument to a jury.We find no error in the circuit court's decisions.

Eminent domain is the power of the State to take or damage private property for a public purpose upon payment of just compensation.The right of the State to take private property for public purposes “is an inherent attribute of sovereignty, irrespective of any constitutional or statutory provision.”¹⁴The right of eminent domain may be delegated and vested by the Legislature in the various subdivisions of the State, such as counties and regional airport...