W. Va. Dep't of Transp., Div. of Highways v. Newton, No. 16-0325

CourtSupreme Court of West Virginia
Writing for the CourtLOUGHRY, Chief Justice
Citation797 S.E.2d 592
Parties WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Petitioner Below, Petitioner v. Margaret Z. NEWTON, Respondent Below, Respondent
Decision Date07 March 2017
Docket NumberNo. 16-0325

797 S.E.2d 592

WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Petitioner Below, Petitioner
v.
Margaret Z. NEWTON, Respondent Below, Respondent

No. 16-0325

Supreme Court of Appeals of West Virginia.

Submitted: January 17, 2017
Filed: March 7, 2017


Scott L. Summers, Esq., Summers Law Office, PLLC, Charleston, West Virginia, Attorney for Petitioner

J. David Judy, III, Esq., Judy & Judy, Moorefield, West Virginia, Attorney for Respondent

LOUGHRY, Chief Justice:

This case is before this Court for a second time. In West Virginia Department of Transportation, Division of Highways v. Newton , 235 W.Va. 267, 773 S.E.2d 371 (2015) (" Newton I " ), this Court affirmed a judgment order of the Circuit Court of Hardy County that awarded the respondent, Margaret Z. Newton, $941,304.53 as just compensation for the removal of limestone from a certain parcel of land during the construction of a portion of the Corridor H highway. In this appeal, the petitioner, the West Virginia Department of Transportation, Division of Highways (hereinafter "DOH"), seeks reversal of a subsequent final order of the Circuit Court of Hardy County entered on March 2, 2016, awarding Ms. Newton her attorney's fees and expenses arising out of the underlying mandamus and condemnation proceedings. The DOH argues there was no basis to award Ms. Newton her attorney's fees and expenses. Alternatively, the DOH contends that the final order must be reversed because the circuit court failed to make factual findings concerning the reasonableness of the amount of attorney's fees and expenses awarded. Ms. Newton asserts a cross-assignment of error,1 claiming the circuit court erred by not awarding her attorney's fees and expenses in an amount consistent with the contingency fee contract she has with her attorney.

Having carefully considered the parties' briefs and arguments, the submitted appendix

797 S.E.2d 597

record, and pertinent authorities, we find that an award of attorney's fees and expenses is warranted but reject Ms. Newton's argument that the award should be based upon the contingency fee contract she has with her attorney. Because the final order is devoid of factual findings regarding the reasonableness of the amount of the attorney's fees and expenses awarded, we reverse and remand this case to the circuit court for an additional hearing on that issue consistent with this opinion.

I. Factual and Procedural Background

In May 2010, Ms. Newton filed a petition for a writ of mandamus in the Circuit Court of Hardy County seeking to force the DOH to institute a condemnation proceeding for the limestone it excavated from a certain parcel of land located in Hardy County during its construction of a portion of the Corridor H highway. Ms. Newton and her husband2 sold the subject property, consisting of thirty-seven acres, to James S. Parsons in 1980. However, the deed of conveyance included a reservation of minerals rights for Ms. Newton. In 2004, the DOH acquired a right-of-way from Mr. Parsons to 6.7 acres of the property in exchange for payment of $33,500.00. Although the DOH was informed by its appraiser of the mineral rights reservation, the DOH never contacted Ms. Newton. The DOH proceeded to remove approximately 236,187 tons of limestone from the property, utilizing a large portion of it in the construction of the Corridor H highway. Newton I , 235 W.Va. at 270, 773 S.E.2d at 374.

Ms. Newton claimed in her petition for a writ of mandamus that as the owner of the minerals she was entitled to just compensation from the DOH for the limestone removed from the property. In March 2011, the mandamus proceeding was resolved through an agreed order whereby the DOH was required to institute a condemnation proceeding against Ms. Newton's mineral interest. The case eventually proceeded to a jury trial.3 Based upon the jury's factual findings, the circuit court entered the April 16, 2014, judgment order. After this Court affirmed the judgment order in Newton I , Ms. Newton renewed her motion for attorney's fees and expenses, which had remained pending in the circuit court during the appeal.

Upon consideration of the matter, the circuit court determined that Ms. Newton was entitled to attorney's fees and expenses for both the mandamus proceeding and the condemnation proceeding, as she had requested. Accordingly, the circuit court entered the final order on March 2, 2016, awarding Ms. Newton attorney's fees and expenses in the amount of $32,510.05 for the mandamus proceeding and $228,917.44 for attorney's fees and expenses incurred in the condemnation proceeding. This appeal followed.

II. Standard of Review

"The decision to award or not to award attorney's fees rests in the sound discretion of the circuit court, and the exercise of that discretion will not be disturbed on appeal except in cases of abuse." Beto v. Stewart , 213 W.Va. 355, 359, 582 S.E.2d 802, 806 (2003) ; see also Sanson v. Brandywine Homes, Inc. , 215 W.Va. 307, 310, 599 S.E.2d 730, 733 (2004) ( "We ... apply the abuse of discretion standard of review to an award of attorney's fees."). Likewise, " ‘ "the trial [court] ... is vested with a wide discretion in determining the amount of ... court costs and counsel fees, and the trial [court's] ... determination of such matters will not be

797 S.E.2d 598

disturbed upon appeal to this Court unless it clearly appears that [it] has abused [its] discretion." Syllabus point 3, [in part,] Bond v. Bond , 144 W.Va. 478, 109 S.E.2d 16 (1959). Syl. Pt. 2, [in part,] Cummings v. Cummings , 170 W.Va. 712, 296 S.E.2d 542 (1982) [ (per curiam) ]. Syllabus point 4, in part, Ball v. Wills , 190 W.Va. 517, 438 S.E.2d 860 (1993). Syl. pt. [2], Daily Gazette Co., Inc. v. West Virginia Dev. Office, 206 W.Va. 51, 521 S.E.2d 543 (1999). Syllabus point 1, Hollen v. Hathaway Electric, Inc. , 213 W.Va. 667, 584 S.E.2d 523 (2003) (per curiam).’ Syl. Pt. 3, Shafer v. Kings Tire Serv., Inc. , 215 W.Va. 169, 597 S.E.2d 302 (2004)." Syl. Pt. 3, Carper v. Watson , 226 W.Va. 50, 697 S.E.2d 86 (2010). Nonetheless, "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W.Va. 138, 459 S.E.2d 415 (1995). With these standards in mind, we address the parties' arguments.

III. Discussion

The DOH first contends there was no basis to award Ms. Newton her attorney's fees and expenses for either the mandamus or condemnation proceeding. "As a general rule each litigant bears his or her own attorney's fees absent a contrary rule of court or express statutory or contractual authority for reimbursement." Syl. Pt. 2, Sally-Mike Properties v. Yo k um , 179 W.Va. 48, 365 S.E.2d 246 (1986). In West Virginia Department of Transportation v. Dodson Mobile Home Sales and Services, Inc., 218 W.Va. 121, 624 S.E.2d 468 (2005), this Court recognized that the Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs Act (hereinafter "Property Acquisition Act" or "Act"), 42 United States Code §§ 4601 to 4655 (2000), authorizes an award of attorney's fees and other expenses in certain eminent domain actions. As we explained:

The Property Acquisition Act applies to federal and federally assisted road construction projects. As a condition of receiving federal assistance for a project resulting in the acquisition of real property, a State agency must agree to comply with the terms of the Act. See 42 U.S.C. § 4655 ; W.Va. Code §§ 54-3-1 to -5 (Repl.Vol.2000) (implementing the federal Act). The general purpose of the federal Act is "to encourage and expedite the acquisition of real property by agreements with owners, to avoid litigation and relieve congestion in the courts, to assure consistent treatment for owners in the many Federal programs, and to promote public confidence in Federal land acquisition practices...." 42 U.S.C. § 4651.

Dodson , 218 W.Va. at 124-25, 624 S.E.2d at 471-72. To effectuate its purpose, the Act requires agencies to comply with certain specified policies. Id. at 125, 624 S.E.2d at 472. Of import in this case is the policy embodied in 42 U.S.C. § 4651(8) (2012), which provides:

If any interest in real property is to be acquired by exercise of the power of eminent domain, the head of the Federal agency concerned shall institute formal condemnation proceedings. No Federal agency head shall intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of his real property.

"To carry out the federal mandate, the Legislature enacted W.Va. Code, 54-3-3 [1972] which makes the federal real property acquisition policies applicable to state agencies[.]" Huntington Urban Renewal Auth. v. Commercial Adjunct Co., 161 W.Va. 360, 367, 242 S.E.2d 562, 566 (1978).

The Act provides for an award of specific litigation expenses when the property owner has to initiate a claim to obtain just compensation for the owner's property that the State has taken for a public purpose. 42 U.S.C. § 4654. The implementing regulation provides, in pertinent part:

The owner of the real property shall be reimbursed for any reasonable expenses, including
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5 practice notes
  • W. Va. Dep't of Transp. v. Echols, No. 18-0226
    • United States
    • Supreme Court of West Virginia
    • April 12, 2019
    ...of Highways , 208 W. Va. 673, 542 S.E.2d 836 (2000).Syl. pt. 4, W. Va. Dep't of Transp., Div. of Highways v. Newton , 238 W. Va. 615, 797 S.E.2d 592 (2017). Condemnation proceedings were initiated by the DOH in the case sub judice ; therefore, Property Owners had no need to resort to...
  • W. Va. Dep't of Transp. v. Veach, No. 16-0326
    • United States
    • Supreme Court of West Virginia
    • April 17, 2017
    ...on the matter. In our recent decision in West Virginia Department of Transportation, Division of Highways v. Newton , 239 W.Va. 615, 797 S.E.2d 592 (2017) (" Newton II" ), we established the legal framework for consideration of whether an award of attorney's fees and costs is warranted in s......
  • State v. Farley, No. 15-1068
    • United States
    • Supreme Court of West Virginia
    • March 7, 2017
    ...pt. 5, in part.On appeal, the petitioner asserts he "would have liked to argue culpability without having to discuss the leniency of the 797 S.E.2d 592sentencing issue together." (emphasis added). Although he may have preferred bifurcation, he does not sufficiently explain how bifurcation w......
  • Recycling Works, LLC v. Bradmor, LLC, No. 19-1080
    • United States
    • Supreme Court of West Virginia
    • May 20, 2021
    ...v. Watson, 226 W.Va. 50, 697 S.E.2d 86 (2010).Syl. Pt. 1, W. Virginia Dep't of Transp., Div. of Highways v. Newton, 238 W. Va. 615, 797 S.E.2d 592 (2017). The circuit court was required to consider the request for attorney's fees according to our prior directives:Where attorney's fees are s......
  • Request a trial to view additional results
5 cases
  • W. Va. Dep't of Transp. v. Echols, No. 18-0226
    • United States
    • Supreme Court of West Virginia
    • April 12, 2019
    ...of Highways , 208 W. Va. 673, 542 S.E.2d 836 (2000).Syl. pt. 4, W. Va. Dep't of Transp., Div. of Highways v. Newton , 238 W. Va. 615, 797 S.E.2d 592 (2017). Condemnation proceedings were initiated by the DOH in the case sub judice ; therefore, Property Owners had no need to resort to...
  • W. Va. Dep't of Transp. v. Veach, No. 16-0326
    • United States
    • Supreme Court of West Virginia
    • April 17, 2017
    ...on the matter. In our recent decision in West Virginia Department of Transportation, Division of Highways v. Newton , 239 W.Va. 615, 797 S.E.2d 592 (2017) (" Newton II" ), we established the legal framework for consideration of whether an award of attorney's fees and costs is warranted in s......
  • State v. Farley, No. 15-1068
    • United States
    • Supreme Court of West Virginia
    • March 7, 2017
    ...pt. 5, in part.On appeal, the petitioner asserts he "would have liked to argue culpability without having to discuss the leniency of the 797 S.E.2d 592sentencing issue together." (emphasis added). Although he may have preferred bifurcation, he does not sufficiently explain how bifurcation w......
  • Recycling Works, LLC v. Bradmor, LLC, No. 19-1080
    • United States
    • Supreme Court of West Virginia
    • May 20, 2021
    ...v. Watson, 226 W.Va. 50, 697 S.E.2d 86 (2010).Syl. Pt. 1, W. Virginia Dep't of Transp., Div. of Highways v. Newton, 238 W. Va. 615, 797 S.E.2d 592 (2017). The circuit court was required to consider the request for attorney's fees according to our prior directives:Where attorney's fees are s......
  • Request a trial to view additional results

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