Scherich v. Wheeling Creek Watershed Prot. & Flood Prevention Comm'n

• Decision Date: 15 March 2021
• Docket Number: No. 19-1065,19-1065
• Court: West Virginia Supreme Court
• Parties: Orange SCHERICH, Margaret Scherich, Thomas Scherich, and Bertha Scherich, Petitioners, v. WHEELING CREEK WATERSHED PROTECTION AND FLOOD PREVENTION COMMISSION, Respondent.

855 S.E.2d 912

Orange SCHERICH, Margaret Scherich, Thomas Scherich, and Bertha Scherich, Petitioners,

v.WHEELING CREEK WATERSHED PROTECTION AND FLOOD PREVENTION COMMISSION, Respondent.

No. 19-1065

Supreme Court of Appeals of West Virginia.

Submitted: January 26, 2021

Filed: March 15, 2021

Webster J. Arceneaux, III, Esq., James C. Stebbins, Esq., Ramonda C. Marling, Esq., James M. Becker, Esq., Lewis Glasser PLLC, Charleston, West Virginia, David C. Hook, Esq., Hook & Hook, Counsel for Petitioners.

Christian E. Turak, Esq., Gold, Khourey & Turak, L.C., Moundsville, West Virginia, Counsel for Respondent.

Armstead, Justice:

Orange Scherich, Margaret Scherich, Thomas Scherich, and Bertha Scherich¹ ("Petitioners") appeal the Circuit Court of Marshall County's final order dismissing the underlying eminent domain action. In 1990, the Wheeling Creek Watershed Protection and Flood Prevention Commission² ("Respondent") filed a condemnation proceeding under West Virginia's quick-take statute against Petitioners’ property. See W. Va. Code § 54-2-14a (1981). After Respondent asked for and received right of entry and Petitioners asked for and received Respondent's estimate of just compensation, in 1991, the matter lay dormant for twenty-seven years.

In October 2018, Petitioners filed a "Motion for Further Proceedings to Determine Just Compensation." In response, the circuit court noticed and conducted a status hearing "as a result of but not to address the" motion. During that status hearing, without giving notice or the opportunity to respond, the circuit court sua sponte dismissed this condemnation proceeding. In its final order, without citing to any legal authority, the circuit court concluded that estoppel, laches, and any applicable statutes of limitation or repose "prevent[ed Petitioners] from resurrecting this matter." Additionally, the circuit court sua sponte found that Petitioners’ withdrawal of Respondent's estimate of just compensation "without further proceedings until now [was] sufficient proof of accord and satisfaction such that [Petitioners] have no further right or claim to this matter." Petitioners appealed the circuit court's final order.

Upon review of the record, hearing the arguments of counsel, and copious research of the pertinent legal authorities, we conclude that the circuit court erred. Accordingly, for the reasons set forth below, we reverse and remand this matter for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 1, 1990, Respondent filed a condemnation proceeding seeking acquisition of two parcels of land owned by Petitioners, including all oil and gas rights. These two parcels are designated by Respondent as Parcels 16 & 45, with Parcel 16 containing 220 ½ acres and Parcel 45 containing 15 acres and are located along Dunkard Fork, a tributary of Wheeling Creek in Webster District, Marshall County, West Virginia. According to the condemnation petition, these two parcels are "necessary ... for the purpose of constructing a dam structure and for provision of sufficient land surrounding said dam for its construction, access thereto, and for a permanent pool, flood pool, reservoir, and emergency spillway." This dam is a part of a watershed-wide project to protect persons and property from floods. In its condemnation petition, Respondent noted that it intended to deposit its estimate of just compensation for the condemned property with the clerk of the circuit court in the amount of $97,000.00, which estimate Respondent averred to be "a fair value of the said land and all of the oil and gas appurtenant thereto, including both the life estates and the remainder interests."

Petitioners filed their answer to the condemnation petition on June 14, 1990, in which they disputed Respondent's estimate of just compensation and stated that Respondent was "seeking to take excessive land beyond the needs for construction access in the creation of permanent pool, flood pool, reservoir, and emergency spillway." Following Petitioners’ answer and after hearing arguments of counsel, the circuit court entered an order on June 15, 1990, which allowed Respondent to deposit its estimate of just compensation with the circuit clerk and "permitted [Respondent] to immediately acquire title to, enter upon, take possession, appropriate and use the lands sought to be condemned in this proceeding for the purposes stated in its [condemnation] Petition." That order further found that "the lands sought to be acquired in this proceeding are necessary for [Respondent's] use for the purposes aforesaid and are not in excess of the quantity reasonably necessary for such purposes." By operation of the provisions of West Virginia Code § 54-2-14a, the title granted Respondent by that order was "defeasible until the compensation and any damages are determined in the condemnation proceedings and [Respondent] has paid any excess amount into court." The order granting defeasible title to Respondent was recorded on the same day in the Office of the Clerk of the County Commission of Marshall County, West Virginia, in Deed Book 551 at Page 652.

On May 7, 1991, Petitioners moved to have Respondent's estimate of just compensation paid over to them. The circuit court entered an order on May 30, 1991, directing the circuit clerk to pay the previously deposited monies over to Petitioners, inclusive of interest that had accrued. The total amount paid over to Petitioners was $101,963.07.

Following such payment, nothing further occurred in the matter for nearly three decades. On October 3, 2018, Petitioners filed a "Motion for Further Proceedings to Determine Just Compensation." This motion sought to "conduct further proceedings in this matter as are necessary to comport with the law and West Virginia Constitution" by allowing Petitioners to challenge the taking of their oil and gas rights, determine just compensation, and vest Respondent with indefeasible title. Following the filing of the motion, the circuit court set a status hearing "as a result of but not to address " Petitioners’ motion.

However, at that status hearing, the circuit court proceeded to address Petitioners’ motion, and, indeed, denied the motion. In its final order dated October 22, 2019, the circuit court found:

Given the time between the filing of [Petitioners’] motion for further proceedings and the last activity in this matter – a period of over twenty-seven years – the [c]ourt FINDS that this matter has been concluded; and that any claims of deficiency in the due process afforded the [Petitioners was] waived by [Petitioners]. Furthermore, the doctrines of estoppel and laches, as well as potentially any statute of limitation or repose, prevent [Petitioners] from resurrecting this matter. Finally, the [c]ourt believes the acceptance of the deposited funds, as evidenced by the last order entered in this matter on May 30, 1991[,] disbursing such funds to [Petitioners], without further proceedings until now, is sufficient proof of accord and satisfaction such that [Petitioners] have no further right or claim in this matter.

It is from entry of the final order that Petitioners appeal.

II. STANDARD OF REVIEW

This appeal is unusual in that the parties do not agree as to the applicable standard of review. Petitioners allege that the final order was a dismissal pursuant to West Virginia Rule of Civil Procedure 41(b), and that on review we must determine whether the circuit court abused its discretion in issuing that order. See Syllabus Point 1, Tolliver v. Maxey , 218 W. Va. 419, 624 S.E.2d 856 (2005). In Tolliver , we explained:

With regard to Rule 41(b), and its related statutory provision, W. Va.Code, 56–8–12 (1923), the syllabus point in Murray v. Roberts, 117 W.Va. 44, 183 S.E. 688 (1936), holds:

A motion to reinstate a dismissed action under the terms of Code, 56–8–12 [ W. Va. R.C.P. 41(b) ], is addressed to the sound discretion of the trial court, and, in the absence of a showing of abuse of that discretion, the action of the trial court upon such motion will not be disturbed upon writ of error. Higgs v. Cunningham, 71 W.Va. 674, 77 S.E. 273 [1913].

Syl. pt. 1, Covington v. Smith, 213 W.Va. 309, 582 S.E.2d 756 (2003). See also, Syl. pt. 4, White Sulphur Springs v. Jarrett, 124 W.Va. 486, 20 S.E.2d 794 (1942), holding that a trial court, "upon a motion to reinstate a suit or action, under Code, 56–8–12, is vested with a sound discretion with respect thereto; but that discretion can only operate on evidence tending to establish facts upon which a finding can be based." Syl. pt. 1, Belington Bank v. Masketeers Company, 185 W.Va. 564, 408 S.E.2d 316 (1991) ; syl., Snyder v. Hicks, 170 W.Va. 281, 294 S.E.2d 83 (1982) ; 6A M.J., Dismissal, Discontinuance and Nonsuit § 18 (2001).

Id. , 218 W. Va. at 423, 624 S.E.2d at 860.

Respondent counters that the final order was a grant of summary judgment pursuant to West Virginia Rule of Civil Procedure 56(c). Under this Rule, we have long held that "[a] circuit court's entry of summary judgment is reviewed de novo. " Syllabus Point 1, Painter v. Peavy , 192 W. Va. 189, 451 S.E.2d 755 (1994).

We do not have to resolve this disagreement in order to address the errors assigned to the circuit court by this appeal because it is clear that, regardless of which standard applies, the circuit court erred in sua sponte dismissing this matter without notice to the parties and affording them the opportunity to be heard. The circuit court further erred in concluding that Petitioners bore the burden of pursuing this matter and that their claims were barred by accord and satisfaction.

III. ANALYSIS

A. Sua Sponte Dismissal

The text of Rule 41(b) of the West Virginia Rules of Civil Procedure provides:

For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under

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