W. Va. Dept. of Highways v. Brumfield

• Decision Date: 20 September 1982
• Docket Number: No. 15309,15309
• Citation: 170 W.Va. 677,295 S.E.2d 917
• Court: West Virginia Supreme Court
• Parties: W. VA. DEPARTMENT OF HIGHWAYS v. G. Frank BRUMFIELD, et al.

Page 917

295 S.E.2d 917

170 W.Va. 677

W. VA. DEPARTMENT OF HIGHWAYS v. G. Frank BRUMFIELD, et al.

No. 15309.

Supreme Court of Appeals of West Virginia.

Sept. 20, 1982.

Syllabus by the Court

1. The general rule is that evidence of the price paid for property which is comparable to the property being condemned is admissible, if the following conditions are satisfied:

(a) The sale must be bona fide;

(b) The sale must be voluntary, not forced;

(c) The sale must have occurred relevantly in point of time; and

(d) The sale must cover property which is comparable to the property being condemned.

2. Where, in an eminent domain suit, it can be shown by new evidence discovered after the trial (which evidence could not with diligence have been obtained before the trial verdict), that the State's sole appraiser based a substantial portion of his comparable value testimony on properties which had not been the subject of voluntary or willing sales or upon properties which were materially and substantially not comparable to the condemned property, the landowner is entitled to a new trial.

3. Most jurisdictions either by statute or by the adoption of rules of civil procedure now accord some right of discovery in condemnation cases.

4. The discovery rights contained in Rule 26(b)(4), West Virginia Rules of Civil Procedure, are extended to eminent domain cases, such rights are enforceable through the discovery sanctions contained in Rule 37, West Virginia Rules of Civil Procedure.

Joseph Martorella, Huntington, Daniel Duval, Legal Div., Dept. of Highways, Charleston, for appellee.

Kenneth H. Fisher, Huntington, for appellants.

MILLER, Chief Justice:

In this case, Frank and Francis Brumfield appeal the final decision of the Circuit Court of Cabell County, in which they were awarded $75,000 for certain property condemned by the West Virginia Department of Highways. They were denied their motion for a new trial on the ground of newly-discovered evidence. We are called upon to determine whether the new evidence, that the Department of Highways' appraiser's testimony was grossly erroneous and misleading, is a sufficient basis to award a new trial. We also consider the prohibition against any discovery in eminent domain cases arising from West Virginia Rule of Civil Procedure 81(a)(6), and determine that it should be modified.

The appellants are the former owners of three lots located in Huntington, West Virginia. The lots are adjacent and have a total of four structures located thereon, consisting of three dwelling houses and a store with a second-floor apartment. The West Virginia Department of Highways, exercising its eminent domain powers, condemned the three lots for the purpose of constructing W. Va. Route 106. The taking of the property was March 5, 1979, and a Commissioners' Hearing was held on April 20, 1979. The Commissioners' finding that the property was worth $75,000 was excepted to by both parties.

On June 25, 1980, the parties presented evidence as to the value of the condemned properties to a Cabell County Circuit Court jury. Frances Brumfield testified on behalf of appellants and presented the testimony of Gideon Dean, a real estate broker. They testified that the total fair market value of the appellants' properties was $183,000 and $159,600, respectively. The Department of Highways presented the testimony of appraiser Ted Golden.

Golden testified that the value of the appellants' three parcels of property was $50,500. He stated that he had reached his opinion by comparing sales of other property in the same vicinity as the appellants'. Although Golden indicated that he investigated approximately thirty sales, he testified as to four particular sales: the Reese to Riffe sale, the Welch to Bays sale; the Garrin to Brunton sale, and the Mynes to Mayes sale. For each sale, Golden testified that he spoke with the buyer and that the sale was an arms-length transaction, and in three cases, that the houses were in good condition, superior to that of the appellants' structures. Upon comparing the sale prices and the houses' conditions, Golden arrived at his opinion of the appellants' property's value.

After the trial, an investigation into Golden's testimony was made, and, upon that investigation, the appellants submitted deeds and affidavits representing newly-discovered evidence controverting and discrediting Golden's testimony. The affidavits and deeds represented the following, all in contradiction to Golden's testimony: (1) in the Welch to Bays sale, Golden had never spoken with Bays concerning his purchase, and the condition of the house when sold to Bays was poor; (2) in the Garrin to Brunton sale, the buyers had purchased the property at a public sale by auction at the Cabell County Courthouse and the sellers were in fact three special commissioners; (3) in the Mynes to Mayes sale, the applicable deed contained a reservation affecting the property, the property's condition was "terrible" and the sale was made in order to settle an estate. ¹ A counteraffidavit was submitted by Golden, although his statements do not directly controvert or explain any of the appellants' new evidence discussed above.

The purpose of the appellants' affidavits and deeds, as well as the thrust of their argument on the motion for new trial, was that Golden's testimony as to value violated recognized legal principles in eminent domain cases. First, where comparable sales are used to establish market value, there must be some comparability between the property. As we have stated in Syllabus Point 6 of State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964): "In a condemnation proceeding, evidence of the price paid for similarly situated and comparable property is admissible in determining the value of the property taken."

Second, market value has, among its core factors, the concept of a willing buyer and seller, and also that the sale is unaffected by compulsion of any kind. This latter rule is set out in Syllabus Point 5 of Wheeling Electric Company v. Gist, 154 W.Va. 69, 173 S.E.2d 336 (1970):

"The market value in such case is the price for which the land could be sold in the market by a person desirous of selling to a person wishing to buy, both freely exercising prudence and intelligent judgment as to its value, and unaffected by compulsion of any kind. Pt. 2, syllabus, Guyandot Valley R'y Co. v. Buskirk, 57 W.Va. 417 ."

Recently, in West Virginia Department of Highways v. Mountain Inc., 167 W.Va. 202, 279 S.E.2d 192 (1981), we had occasion to discuss a related rule concerning whether the price paid for the condemned property itself could be shown in evidence. We adopted this statement from 5 Nichols on Eminent Domain § 21.2 (3rd rev. ed. 1979):

" 'The general rule is that evidence of the price paid for property which is the subject of appropriation proceedings is admissible, if the following conditions are satisfied:

'(a) The sale must be bona fide;

'(b) The sale must be voluntary, not forced;

'(c) The sale must have occurred relevantly in point of time; and '(d) The sale must cover substantially the same property which is the subject of the appropriation action.' " (Footnote omitted)

It is apparent that, with the exception of a slight modification to the introductory paragraph and to subparagraph (d), this rule is the same as our rule involving utilization of comparable sales of other property. We, therefore, restate the rule as modified:

The general rule is that evidence of the price paid for property which is comparable to the property being condemned is admissible, if the following conditions are satisfied:

(a) The sale must be bona fide;

(b) The sale must be voluntary, not forced;

(c) The sale must have occurred relevantly in point of time; and

(d) The sale must cover property which is comparable to the property being condemned. ²

The Department of Highways argues that the trial court was correct in refusing to overturn the jury's verdict based on the newly-discovered evidence. One of its arguments is that the material was primarily for purposes of impeachment, and the Department cites our traditional rule that "[a] new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side." Syllabus Point 1, in part, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894), rev'd on other grounds, State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955). See also State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979); State v. Farley, 143 W.Va. 445, 104 S.E.2d 265 (1958); Phenix Fire Insurance Co. v. Virginia-Western Power Co., 81 W.Va. 298, 94 S.E. 372 (1917). ³

We have concluded previously that even though the newly-discovered evidence is of an impeaching nature, it may be sufficient to award a new trial where the witness sought to be impeached by the newly-discovered evidence was the principle or sole witness for the opposing party. In State v. Stewart, 161 W.Va. 127, 239 S.E.2d 777, 784 (1977), after reviewing authorities in other jurisdictions, we summarized the rule in this fashion: "[I]n most such cases where relief is granted, the witness whose testimony is impeached by the newly-discovered impeachment evidence is the principle or sole witness for the government without whose testimony there would be no conviction." (Footnote omitted)

We applied much the same rule in a civil action, Cremeans v. Myers, 136 W.Va. 157, 67 S.E.2d 28 (1951), where the plaintiff was seeking to recover damages for personal injuries. He testified that his injuries had precluded his ability to resume his employment in a department store after the accident and he had thereby lost a considerable amount of wages. After the trial the defendant produced an affidavit from the store owner to the effect that the plaintiff had not been employed for the company prior to the accident. We granted the motion for new trial based on the...