State ex rel. State of Wv v. Cookman, No. 33095.

CourtSupreme Court of West Virginia
Writing for the CourtBenjamin
Citation639 S.E.2d 693
PartiesSTATE of West Virginia ex rel. STATE OF WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, a public corporation, and Fred Van Kirk, P.E., Secretary/Commissioner of Highways, Petitioners, v. The Honorable Donald H. COOKMAN, Judge of the Circuit Court of Hardy County and Fort Pleasant Farms, Inc., Respondents.
Docket NumberNo. 33095.
Decision Date01 December 2006
639 S.E.2d 693
STATE of West Virginia ex rel. STATE OF WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, a public corporation, and Fred Van Kirk, P.E., Secretary/Commissioner of Highways, Petitioners,
v.
The Honorable Donald H. COOKMAN, Judge of the Circuit Court of Hardy County and Fort Pleasant Farms, Inc., Respondents.
No. 33095.
Supreme Court of Appeals of West Virginia.
Submitted: September 13, 2006.
Decided: December 1, 2006.
Dissenting Opinion of Justice Davis December 13, 2006.

[639 S.E.2d 694]

Syllabus by the Court

1. "Prohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari." Syllabus Point 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).

2. "A writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders." Syllabus Point 1, State Farm Mutual Insurance Company v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).

3. "A circuit court's ruling on discovery requests is reviewed for an abuse of discretion standard; but, where a circuit court's ruling turns on a misinterpretation of the West Virginia Rules of Civil Procedure, our review is plenary. The discretion that is normally given to a trial court's procedural decisions does not apply where the trial court makes no findings or applies the wrong legal standard." Syllabus Point 5, State ex rel. Medical Assurance of West Virginia, Inc. v. Recht, 213 W.Va. 457, 583 S.E.2d 80 (2003).

4. A circuit court is required, pursuant to Rule 26(b)(4)(B) of the West Virginia Rules of Civil Procedure, to make specific findings regarding the existence of exceptional circumstances justifying the discovery of facts known or opinions held by an expert or consultant who has been retained or specially employed by a party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial before the circuit court may compel such discovery over a party's objection.

Clarence E. Martin, III, Martin & Seibert, L.C., Martinsburg, John D. Athey, Keyser, for Petitioner.

James D. Gray, Steptoe & Johnson, PLLC, Clarksburg, Ancil G. Ramey, Steptoe & Johnson, PLLC, Charleston, Oscar M. Bean, Bean & Bean, Moorefield, for Respondent Fort Pleasant Farms, Inc.

BENJAMIN, Justice.


Petitioners, West Virginia Department of Transportation, Division of Highways, and Fred VanKirk, Secretary/Commissioner of Highways [hereinafter collectively "DOT"], instituted this original jurisdiction proceeding by filing a Petition for Writ of Prohibition on April 24, 2006, seeking an order from this Court prohibiting the enforcement of an April 13, 2006, order issued by the Circuit Court of Hardy County. In its April 13, 2006, Order, the Circuit Court of Hardy County compelled DOT to produce certain appraisal reports and other evaluations prepared by experts and/or consultants retained by DOT in connection with the underlying condemnation proceeding. On May 24, 2006,

639 S.E.2d 695

this Court issued a Rule to Show Cause why the requested writ of prohibition should not be awarded. Upon due consideration of the arguments of counsel and the pertinent legal authorities, we now grant the requested writ, as moulded.

I.
FACTUAL AND PROCEDURAL HISTORY

In June 2004, DOT condemned 48.24 acres of property owned by Respondent Fort Pleasant Farms, Inc. ["Fort Pleasant"] in Hardy County, West Virginia, for use in the construction of Corridor H, a federally assisted highway project. Civil action number 04-C-51 was instituted in the Circuit Court of Hardy County to determine the appropriate compensation for this governmental taking. It appears from the limited record before this Court that the 48.24 acre tract of property at issue is a portion of a 160 acre tract owned by Fort Pleasant and contains a significant fine, fissel shale deposit.1

Not surprisingly, the parties' evaluations of the value of the property taken and damage to the residue differs significantly.2 After a commissioners' hearing was held on December 14 and 15, 2005, a report was issued valuing the taking and residue damage at $1,100,600.00. Both parties filed exceptions to the commissioners' report with the circuit court. In addition, Fort Pleasant filed a motion to compel answers to its October 27, 2005, discovery requests with the circuit court. The October 27, 2005, discovery requests consisted of the following two interrogatories:

INTERROGATORY NO. 1: Identify each and every expert witness or potential expert witness Petitioner or its counsel have consulted or communicated with in any fashion and/or retained in connection with this case, whether or not Petitioner intends to use or call such persons as a witness, who have not been previously disclosed.

INTERROGATORY NO. 2: Have any of the persons identified as expert appraisal witnesses or potential expert appraisal witnesses appraised other properties for the Petitioner of a similar nature (properties having a highest and best use as residential, commercial and/or industrial development properties), which are located within one-half mile of the subject? If so, identify each such person and provide a copy of all appraisal reports as to each of said properties.

DOT responded to the October 27, 2005 discovery requests with objections. In response to the first interrogatory, DOT objected on the basis that the request was beyond the scope of permissible discovery.3 DOT objected

639 S.E.2d 696

to the second request on the basis that it sought the provision of appraisals and other personal information of non-parties in violation of their right to privacy, that exceeded the scope of permissible discovery, that it was irrelevant, immaterial, burdensome and not reasonably calculated to lead to the discovery of admissible evidence, and that it sought materials subject to the attorney-client privilege and/or prepared in anticipation of litigation.

In addressing Fort Pleasant's motion to compel the discovery and DOT's objections thereto, the circuit court entered its April 13, 2006, order finding the information sought was relevant, was not unduly burdensome and that it constituted proper discovery. Although finding the information discoverable, the circuit court noted that the extent to which such information may be utilized at trial was a different issue. In granting Fort Pleasant's motion over DOT's objections, the circuit court ordered DOT to immediately produce to Fort Pleasant:

(1) copies of all appraisal reports and other evaluations, of or relating to the subject property, prepared for Petitioners [DOT] by all experts and consultants, whether or not said persons or firms will or may be witnesses in this proceeding; and

(2) copies of all appraisal reports and evaluations pertaining to other properties acquired for the subject Corridor H project, which are located within one-half mile of the subject property, conducted twelve-months before or after the date of take of the subject property and prepared by those persons who are designated or may be designated by the Petitioners [DOT] as witnesses in this action.

(Emphasis added).

Shortly after entry of the circuit court's order, DOT petitioned this Court for a writ of prohibition. In its petition, DOT argued that the circuit court exceeded its legitimate powers and abused its discretion by ordering the production of appraisal reports and other evaluations performed by persons not designated as witnesses in the underlying condemnation case. DOT also contended that the circuit court improperly ordered the production of appraisal reports and evaluations pertaining to other properties.

II.
STANDARD OF REVIEW

Pursuant to West Virginia Code § 53-1-1 (1923), a "writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers." Addressing the available scope of a writ of prohibition, this Court has held that "[p]rohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari." Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).

In the instant matter, DOT argues that the circuit court exceeded its legitimate powers and abused its discretion by ordering the production of certain appraisals and other evaluations in the underlying condemnation action. This Court has previously held that "[a] writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders." Syl. Pt. 1, State Farm Mut. Ins. Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992). Further,

[a] circuit court's ruling on discovery requests is reviewed for an abuse of discretion standard; but, where a circuit court's ruling turns on a misinterpretation of the West Virginia Rules of Civil Procedure, our review is plenary. The discretion that is normally given to a trial court's procedural decisions does not apply where the trial court makes no findings or applies the wrong legal standard.

Syl. Pt. 5, State ex rel. Medical Assurance of West Virginia, Inc. v. Recht, 213 W.Va. 457, 583 S.E.2d 80 (2003). See also, Syl. Pt. 4, State ex rel. Wausau Business Ins. Co. v. Madden, 216 W.Va. 776, 613 S.E.2d 924 (2005); Syl. Pt. 2, State ex rel. Erie Prop. & Cas. Ins. Co. v. Mazzone, 218 W.Va. 593, 625 S.E.2d 355 (2005). With these standards guiding our determination, we now consider the request for issuance of the writ of...

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3 practice notes
  • State ex rel. Vanderra Resources, LLC v. Hummel, No. 18-1072
    • United States
    • Supreme Court of West Virginia
    • June 3, 2019
    ...at 85.31 Id. at Syl. Pt. 6.32 See State ex rel. State of W. Va. Dep’t of Transp., Div. of Highways v. Cookman , 219 W. Va. 601, 618, 639 S.E.2d 693, 710 (2006) (Davis, C.J., dissenting.)33 Id.34 Nothing in this Opinion prevents Vanderra from requesting that the circuit court enter an interl......
  • State ex rel. West Virginia Dep't of Transp. v. Reed, Nos. 11–1358
    • United States
    • Supreme Court of West Virginia
    • February 10, 2012
    ...property. In view of this holding, the decision in State ex rel. West Virginia Department of Transportation v. Cookman, 219 W.Va. 601, 639 S.E.2d 693 (2006), is overruled in its entirety.Leah R. Chappell, Adams, Fisher & Chappell, Ripley, WV, for Petitioner.Robert L. Bays, Bowles Rice McDav......
  • State ex rel. West Virginia Dep't of Transp. v. Reed, No. 11-135
    • United States
    • Supreme Court of West Virginia
    • February 10, 2012
    ...property. In view of this holding, the decision in State ex rel. West Virginia Department of Transportation v. Cookman, 219 W. Va. 601, 639 S.E.2d 693 (2006), is overruled in its entirety. Davis, Justice:Page 4 This proceeding, brought under the original jurisdiction of this Court, involves......
3 cases
  • State ex rel. Vanderra Resources, LLC v. Hummel, No. 18-1072
    • United States
    • Supreme Court of West Virginia
    • June 3, 2019
    ...at 85.31 Id. at Syl. Pt. 6.32 See State ex rel. State of W. Va. Dep’t of Transp., Div. of Highways v. Cookman , 219 W. Va. 601, 618, 639 S.E.2d 693, 710 (2006) (Davis, C.J., dissenting.)33 Id.34 Nothing in this Opinion prevents Vanderra from requesting that the circuit court enter an interl......
  • State ex rel. West Virginia Dep't of Transp. v. Reed, Nos. 11–1358
    • United States
    • Supreme Court of West Virginia
    • February 10, 2012
    ...property. In view of this holding, the decision in State ex rel. West Virginia Department of Transportation v. Cookman, 219 W.Va. 601, 639 S.E.2d 693 (2006), is overruled in its entirety.Leah R. Chappell, Adams, Fisher & Chappell, Ripley, WV, for Petitioner.Robert L. Bays, Bowles Rice McDav......
  • State ex rel. West Virginia Dep't of Transp. v. Reed, No. 11-135
    • United States
    • Supreme Court of West Virginia
    • February 10, 2012
    ...property. In view of this holding, the decision in State ex rel. West Virginia Department of Transportation v. Cookman, 219 W. Va. 601, 639 S.E.2d 693 (2006), is overruled in its entirety. Davis, Justice:Page 4 This proceeding, brought under the original jurisdiction of this Court, involves......

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