W. Va. Dep't of Transp., Div. of Highways v. Newton
| Decision Date | 13 May 2015 |
| Docket Number | No. 14–0428.,14–0428. |
| Citation | 773 S.E.2d 371,235 W.Va. 267 |
| Court | West Virginia Supreme Court |
| Parties | WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS and Paul A. Mattox, Jr., Secretary/Commissioner of Highways, Petitioners Below, Petitioners v. Margaret Z. NEWTON, Respondent Below, Respondent. |
Clarence E. Martin, III, Susan R. Snowden, Martin & Seibert, L.C., Martinsburg, WV, for Petitioners.
J. David Judy, III, Judy & Judy, Moorefield, WV, for Respondent.
This is an eminent domain appeal that was brought by the Petitioners, West Virginia Department of Transportation, Division of Highways and Paul A. Mattox, Jr., Secretary/Commissioner of Highways (collectively “DOH”), from an adverse judgment in the Circuit Court of Hardy County. In seeking a new trial, DOH has set out nine assignments of error. The Respondent, Margaret Z. Newton (“Ms. Newton”), asks this Court to affirm the judgment below.1 Upon our review of the parties' briefs and oral arguments, the appendix records designated for our consideration, and the pertinent authorities, we affirm.
The record in the case shows that on June 4, 1980, Ms. Newton sold approximately 37 acres of land, situate in Hardy County, to James S. Parsons.2 The property deed reserved all mineral rights under the land to Ms. Newton. As a result, Mr. Parsons owned the surface, and Ms. Newton owned the minerals. In 2003, DOH began testing soil on parts of the property purchased by Mr. Parsons. The soil testing was done as part of DOH's preparation for constructing a portion of the Corridor H highway through Mr. Parsons' land. The soil tests revealed significant deposits of limestone under Mr. Parsons' land. By deed dated October 7, 2004, DOH acquired a right-of-way from Mr. Parsons, that involved access to approximately 6.7 acres of his land, in exchange for $33,500.00.
DOH began construction of the highway through Mr. Parsons' land during the period 2006 through 2009. In order to build the highway through Mr. Parsons' land, DOH had to excavate approximately 236,187 tons of limestone from the property. DOH did not contact Ms. Newton, the owner of the limestone, even though DOH appears to have used much of the limestone in building the highway. In May 2010, Ms. Newton filed a mandamus action against DOH seeking to force DOH to institute a condemnation proceeding for the limestone removed from her mineral reservation in the land.3 An agreed order was entered in March 2011, whereby DOH was required to institute a condemnation proceeding against the limestone interests of Ms. Newton.4
After the agreed order was entered, DOH filed the instant condemnation action seeking a determination of whether Ms. Newton was entitled to compensation for removal of the limestone. After a period of discovery, the case was submitted to a condemnation commission on September 20, 2013, as allowed by W. Va.Code § 54–2–5 (1963) (Repl. Vol. 2008). The condemnation commission returned a verdict favorable to DOH. Thereafter, Ms. Newton rejected the decision of the condemnation commission and demanded a jury trial as allowed by W. Va.Code § 54–2–10 (1967) (Repl. Vol. 2008).
The case proceeded to trial on April 7, 2014, with a twelve-person jury as required by law. See W. Va. Const. art. 3, § 9. It appears that a special verdict form was submitted to the jury. The special verdict form allowed the jury to determine the amount of limestone excavated and the amount of limestone alienated or remaining on the property; the jury also determined a separate cost per ton for the excavated limestone and the alienated limestone. Based upon the jury's factual findings, the trial court entered an order of judgment on April 16, 2014, that awarded Ms. Newton $941,304.53. This award was made after the trial judge offset the money DOH paid Mr. Parsons for the surface right-of-way. DOH did not file a post-trial motion for new trial or judgment as a matter of law. DOH filed the instant appeal directly from the trial court's order of judgment.
DOH has set out nine assignments of error. Resolving the issues presented in this case requires the application of specific review standards. Consequently, we will not set out any general standard of review. Instead, we will address the standard of review that is specific for each issue.
On appeal to this Court, DOH has asserted nine assignments of error. We separately will consider each issue.
Before we address DOH's assignments of error, we must first resolve Ms. Newton's contention that we cannot reach the merits of the appeal because DOH failed to file a post-trial motion for a new trial. According to Ms. Newton, Rule 59(f) of the West Virginia Rules of Civil Procedure precludes consideration of an appeal if a motion for new trial is not filed.5 DOH contends that the post-trial requirements of Rule 59(f) apply only to issues occurring during the actual trial, and that eight of the issues that have been raised in its appeal involve pretrial rulings. Consequently, DOH argues, Rule 59(f) has no application. Resolving this matter requires this Court to examine the text of Rule 59(f). We apply a de novo standard of review of an issue involving the application of the rules of civil procedure. See Syl. pt. 4, Keesecker v. Bird, 200 W.Va. 667, 490 S.E.2d 754 (1997) ().6
The relevant text of Rule 59(f) states the following:
If a party fails to make a timely motion for a new trial, after a trial by jury in which judgment as a matter of law has not been rendered by the court, the party is deemed to have waived all errors occurring during the trial which the party might have assigned as grounds in support of such motion.[ 7 ]
(Emphasis and footnote added). This Court had an opportunity to address the application of Rule 59(f) in Miller v. Triplett, 203 W.Va. 351, 507 S.E.2d 714 (1998). In Miller, a jury awarded a verdict in favor of the plaintiffs as a result of injuries they sustained in an automobile accident. The plaintiffs appealed the favorable verdict and sought a new trial because of the small size of the award. This Court applied Rule 59(f) and declined to address the assignments of error made by the plaintiffs because they failed to file a motion for new trial. In doing so, we held that “if a party fails to make a timely motion for a new trial, Rule 59(f)... bars consideration on appeal of alleged errors which occurred during the trial which a party might have assigned as grounds in support of a motion for a new trial.” Miller, 203 W.Va. at 356, 507 S.E.2d at 719.8 See also Cleckley, Davis, and Palmer, Litigation Handbook, § 59(f), at 1288 ().9
The issue raised in the instant case is whether a party may appeal pretrial rulings of a trial court, even though the party failed to file a post-trial motion for a new trial. This issue was not addressed on the merits in Miller, but we did allude to it in passing in a footnote as follows:
We strongly emphasize, however, that failure to make a motion for a new trial after the entry of judgment results only in a waiver of errors occurring during the trial which the party might have assigned as grounds in support of the motion for a new trial. It does not waive other alleged errors such as those listed in West Virginia Rule of Civil Procedure 60(b) which includes, for example, an appeal based on fraud, surprise or newly discovered evidence.
Miller, 203 W.Va. at 356 n. 8, 507 S.E.2d at 719 n. 8 (emphasis in original). The commentary to Rule 59(f) by the original drafters of our rules of civil procedure provides:
As noted by the italicized words in the preceding paragraph, waiver under the Rule applies only to errors occurring during the trial. This would be consistent with past practice as to there being no waiver of errors in rulings as to the pleadings by failure to move for a new trial. This is even more important under the Rules for it would include any error as to any of the pre-trial matters whether or not heretofore deemed pleadings.
Stewart v. Ohio River R. Co., 38 W.Va. 438, 455, 18 S.E. 604, 610 (1893) (). It is clear that Professors Lugar and Silverstein understood Rule 59(f) as not having any application to assignments of error that were limited to pretrial rulings.
Therefore, we now hold that Rule 59(f) of the West Virginia Rules of Civil Procedure does not preclude a party from appealing definitive pretrial rulings of a trial court that are in the record, even though the party failed to file a post-trial motion for a new trial.10
To the extent that any of DOH's first eight assignments of error comply with our holding,11 they will be addressed on the merits.12
The first issue raised by DOH is that the circuit court committed error in denying its pretrial request to find that Ms. Newton did not sustain any compensable damage to a viable property right. In essence, DOH is arguing that the limestone it took had no compensable value.13 In support of this argument, DOH has cited to a specific page number in the appendix, App. p. 0184, where presumably its motion and the trial court's ruling is supposed to be found. However, the page number of the document cited to in the brief is part of DOH's condemnation petition. DOH has not cited to a motion containing the request, nor a definitive ruling by...
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