Taylor v. Miller

• Decision Date: 28 November 1978
• Docket Number: No. 14260,14260
• Citation: 249 S.E.2d 191,162 W.Va. 265
• Court: West Virginia Supreme Court
• Parties: Carl O. TAYLOR v. Charles MILLER, Commissioner, West Virginia Department of Highways et al.

Page 191

249 S.E.2d 191

162 W.Va. 265

Carl O. TAYLOR v. Charles MILLER, Commissioner, West Virginia Department of

Highways et al.

No. 14260.

Supreme Court of Appeals of West Virginia.

Nov. 28, 1978.

Syllabus by the Court

1. A writ of mandamus will not lie to compel the State to pay an eminent domain award unless there is a final order and the appeal time has expired.

2. Rule 81(a)(6) of the West Virginia Rules of Civil Procedure expressly excludes eminent domain proceedings from the operation of those Rules.

3. In an eminent domain case, a motion for new trial must be filed and overruled in order to preserve trial errors for purposes of appellate review.

4. Ordinarily a judicial memorandum opinion lacks the requisite finality to be appealable, since it does not constitute the final judgment order of the court.

J. D. Huffman, Gassaway, for relator.

Anthony G. Halkias, Charleston, for respondents.

MILLER, Justice:

This case presents several questions involving the finality of orders in an eminent domain proceeding. Relator Carl O. Taylor seeks a writ of mandamus to compel the State to pay him the amount awarded by a jury. The State contends mandamus will not lie because there is no final order. Both parties agree that under the law, mandamus will not lie to compel the State to pay an eminent domain award unless there is a final order and the appeal time has expired. State ex rel. Judy v. Kiger, 153 W.Va. 764, 172 S.E.2d 579 (1970); State ex rel. Cassinelli v. Bassett, 148 W.Va. 697, 137 S.E.2d 232 (1964); State ex rel. Smith v. Hall, 94 W.Va. 400, 119 S.E. 166 (1923); Poling v. Board of Education, 50 W.Va. 374, 40 S.E. 357 (1901); See F. Ferris & F. Ferris, Jr., The Law of Extraordinary Legal Remedies §§ 212, 215 (1926); S. Merrill, Law of Mandamus §§ 130, 131 (1892).

Neither party disputes the essential facts. At a consolidated jury trial of the issue of the just compensation to be paid, Taylor, the landowner, obtained a combined verdict of $81,750 in the Circuit Court of Braxton County. ¹ The court orders entered March 25, 1977, recite the demands for jury trial and the holding of the trial on March 10-11, 1977; quote the respective verdicts and state their acceptance by the court. They conclude by stating that the State had moved to have the verdicts set aside and a new trial awarded. The landowner's objection was noted and the State was granted ten days in which to file a written assignment of errors containing grounds in support of the motions.

On April 4, 1977, the State filed written motions for a new trial. On August 22, 1977, after having received legal memoranda and having heard oral argument, the court entered its written opinion overruling the State's motions for a new trial.

After the court had entered its written opinion, the landowner and the State negotiated for several months, and, indeed, have never come to an agreement upon, the contents of an order reciting the judgment of the court with respect to the motions for a new trial.

On June 6, 1978, the court entertained a motion by the State that such an order be entered and a motion by the landowner that if entered, it should be as a Nunc pro tunc order. The landowner wanted the order retroactive either to March 25, 1977, the date of the court's order reciting and accepting the jury verdicts, or to August 22, 1977, the date of the court's opinion. The court ruled that the order with regard to the motions for a new trial would be entered Nunc pro tunc to August 22, 1977.

I

The landowner initially contends that the order entered on the jury verdict constitutes a final order which the State failed to appeal within eight months.

Both parties acknowledge that Rule 81(a)(6) of the West Virginia Rules of Civil Procedure expressly excludes eminent domain proceedings from the operation of those Rules. State Road Commission v. Hereford, 151 W.Va. 526, 153 S.E.2d 501 (1967). They also agree that W.Va.Code, 58-5-4, prescribes the time within which an appeal must be taken. This Code section states in relevant part:

"No petition shall be presented for an appeal from, or writ of error or supersedeas to, Any judgment, decree or order, whether the State be a party thereto or not, Which shall have been rendered or made more than eight months before such petition is presented." (Emphasis added)

The emphasized language in this section, except for that prescribing the time limit on taking an appeal, has remained unchanged since 1877. In that year the Legislature finally departed from the Virginia statutory use of the phrase "any Final judgment, decree or order" (emphasis added), Chapter 182, Section 3, Virginia Code of 1849. ²

In Lloyd v. Kyle, 26 W.Va. 534, 537-39 (1885), we said this change must have been a purposeful one:

"The alteration, as we have seen, was first made in the Code of 1868, then in 1872 the old law was restored, and then in 1877, the alteration was again made and has been continued ever since. This persistence in effecting and preserving the change is strong evidence that it was not made inadvertently, but advisedly and for a purpose. This purpose may be readily divined when we consider it has been always held, under the Virginia statute, that there is not and never has been any limitation to the right of appeal from interlocutory decrees so long as the case is pending in court. Kendrick v. Whitney, 28 Grat. 646.

"Interlocutory decrees 'requiring money to be paid, or real estate to be sold, or the possession or title of property to be changed, Or adjudicating the principles of the cause,' and especially the last, very nearly, in their nature and effect, approximate final decrees, and it is often difficult to distinguish the line that separates them; consequently, if there be any sound policy in prescribing a limit to appeals from final decrees the same policy must apply to such interlocutory decrees as possess the same right of appeal. Acts of limitation are based upon considerations looking to the peace and repose of society. The legislature may have considered with much reason, that the policy of Virginia which fixed no limit to appeals from any class of interlocutory decrees, was unwise, and that sound policy required that there should be a limit, at least to such interlocutory decrees, as approximate final decrees in their nature and effect." (Emphasis in original) (26 W.Va. at 539-40)

To be appealable, therefore, an order either must be a final order or an interlocutory order "approximat(ing)" a final order in its "nature and effect." See Stout v. Philippi Mfg. & Mercantile Co., 41 W.Va. 339, 344, 23 S.E. 571, 573 (1895); Buster v. Holland, 27 W.Va. 510, 523-24 (1886); Core v. Strickler, 24 W.Va. 689, 693-96 (1884).

The landowner contends the orders of March 1977 were appealable orders, as they confirmed the jury verdict which adjudicated the merits of the case. He points to the fact that since the Rules of Civil Procedure do not apply, Rule 72 of the Rules, which triggers the beginning of the appeal time upon the trial court's "granting or denying a motion for a new trial," is not applicable. He contends no similar requirement exists outside the Rules of Civil Procedure mandating that a party file a motion for a new trial in order to have an appeal.

The landowner acknowledges the W.Va. Code, 56-6-28, ³ governs the procedure to be followed in granting a new trial in "any civil case or proceeding," but insists this statute is not mandatory. This Court has held, however, that in order for appellate review of an alleged trial error to be had, the party asserting error not only must object when it is made and file a bill of exceptions, but must also request a new trial, have it refused by the trial court, and object on the record to the refusal. State v. Cruikshank, 138 W.Va. 332, 336-39, 76 S.E.2d 744, 747-48 (1953); Breedlove v. Galloway, 109 W.Va. 164, 165, 153 S.E. 298, 299 (1930); Danks v. Rodeheaver, 26 W.Va. 274 (1885). The Court stated in Cruikshank :

"In the early case of State for the use of Price v. Phares, 24 W.Va. 657, this Court said in point 3 of the syllabus that 'In a case tried by a jury, no matter how many exceptions are taken to rulings of the court made during the trial, unless a motion is made before the trial-court to set aside the verdict, and that motion is overruled, all such errors saved will by the appellate court be deemed to have been waived.' " (138 W.Va. at 338; 76 S.E.2d at 748)

Thus, it is clear that under the foregoing cases we require in an eminent domain case that a motion for a new trial must be filed and overruled in order to preserve trial errors for purpose of appellate review. The State could not have appealed the March 1977 orders which confirmed the jury verdict, since no motion for new trial had been filed and overruled.

II

Alternatively, the landowner contends that the court's written memorandum opinion of August 22, 1977, should constitute the final order. However, we have held that ordinarily a judicial memorandum opinion lacks the requisite finality to be appealable, since it does not constitute the formal judgment order of the court. Coltrane v. Gill, 99 W.Va. 447, 454, 129 S.E. 469, 471 (1925); Armstrong v. Ross, 56 W.Va. 16, 48 S.E. 745 (1904); Corley v. Corley, 53 W.Va. 142, 44 S.E. 132 (1903); Steenrod's Administrator v. W.P. & B. Railroad Co., 25 W.Va. 133, 135 (1884). The reasoning of these cases is bottomed not upon a mere formal distinction between an opinion and a final decree or order, but upon the eminently practical difference between them, as stated in Coltrane :

" 'Under our statute appeals are allowable in any case in chancery wherein there is a decree or order adjudicating the principles of the cause. * * * The expression of the opinion of the court is not such adjudication. * * * The matter is still in the breast of the court and the judge may change his opinion before entering an appealable decree. Hanna v. Banks, 55 W.Va. 185, 46 S.E. 920, ...