West Virginia Div. of Highways v. Butler

Citation516 S.E.2d 769,205 W.Va. 146
Decision Date15 June 1999
Docket NumberNo. 25791.,25791.
PartiesThe WEST VIRGINIA DIVISION OF HIGHWAYS, a Corporation, Petitioner Below, Appellee, v. Jack BUTLER and the Nicholas County Sheriff/Treasurer, Respondents Below, Jack Butler, Respondent Below, Appellant.
CourtSupreme Court of West Virginia

G. Alan Williams, Esq., West Virginia Division of Highways, District Attorney, Lewisburg, West Virginia, Attorney for the Appellee.

William C. Martin, Esq., Cooper and Martin, Sutton, West Virginia, Attorney for Butler.

MAYNARD, Justice:

This is an appeal from a final order of the Circuit Court of Nicholas County which entered judgment for the appellant, Jack Butler,1 in the total sum of $26,600.00 which was the sum returned by the jury at the close of eminent domain proceedings as just compensation for land taken by the appellee West Virginia Department of Transportation, Division of Highways.2 The appellant raises three assignments of error which he alleges resulted in an unfair trial. After careful consideration of the issues, we reverse and remand for proceedings consistent with this decision.

I. FACTS

The appellant, Jack Butler, owned twenty acres of undeveloped land located along U.S. Route 19 in Nicholas County. In order to widen U.S. Route 19 to four lanes, the appellee, West Virginia Department of Transportation, Division of Highways (DOH), instituted eminent domain proceedings, pursuant to W.Va.Code § 54-2-14a (1981), in the Circuit Court of Nicholas County for the purpose of acquiring title to 3.665 acres of the appellant's property.

By order of March 4, 1996, the Circuit Court of Nicholas County found that the DOH had a lawful right to take the subject property for public purposes. The circuit court ordered the DOH to pay to the clerk of the court $24,300.00, the amount deemed by the DOH to be just compensation for the property, pending the completion of the report of the condemnation commissioners appointed to ascertain the property's value.

By report of May 1, 1997, the commissioners found that $30,000.00 would be just compensation for the 3.665 acre tract of land. Both the DOH and the appellant excepted to this sum and demanded a jury trial which was held in January 1998 in the Circuit Court of Nicholas County. The crux of the issue at trial was whether the subject tract of land should be valued as commercial property. The appellant testified that he purchased all twenty acres of the property in 1986 for $20,000.00 for investment purposes. Gary Herndon, a residential real estate appraiser, and Calvert Estill, a general real estate appraiser and consultant, testified that all 3.665 acres constituted commercial property worth $70,000.00 an acre, making the entire 3.665 acre tract worth $257,000.00. David Heater, a corporate secretary and real estate manager for Go-Mart Incorporated testified that Go-Mart considered purchasing the tract at issue in 1990 in order to build a convenience store or truck stop but chose to forego the purchase in light of the DOH's plans to widen U.S. Route 19. The appellant sought to have Mr. Heater qualified as an expert in site selection for convenience stores so that Mr. Heater could testify as to the value of the property at issue. The circuit court excluded the testimony based on the fact that Mr. Heater was not a certified or licensed appraiser.

Evidence on behalf of the DOH consisted of the testimony of Gordon Cole, a general real estate appraiser, that only .38 acres of the subject tract consisted of commercial property. He valued this portion of the property at $73,000.00 an acre and the remaining 3.29 acres at $405.00 an acre, making the total value of the property $24,350.00. David Casto, a general real estate appraiser, testified that he concurred with Mr. Cole's appraisal.

At the close of the evidence, the jury returned a verdict of $26,600.00. The appellant's motion for a new trial was denied by the circuit court by order of March 31, 1998 in which judgment for the DOH was rendered in the total sum of the verdict rendered by the jury. The appellant now appeals this final order.

II. DISCUSSION

The first issue raised by the appellant is whether the circuit court erred in refusing to allow David Heater, the corporate secretary and real estate manager for Go-Mart Incorporated, to testify as an expert witness regarding his opinion of the value of the property. Concerning this Court's standard of reviewing the circuit court's decision to exclude this testimony, we have previously stated that "[t]he admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court's decision will not be reversed unless it is clearly wrong." Syllabus Point 6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991), cert. denied, 502 U.S. 908, 112 S.Ct. 301, 116 L.Ed.2d 244 (1991).

As noted above, the DOH objected to Mr. Heater's testimony on the value of the property at issue, and the circuit court excluded the testimony, on the ground that Mr. Heater was not a certified or licensed appraiser and thus could not give an opinion as to the value of the property. The appellant correctly argues that the circuit court erred in excluding the testimony because Mr. Heater met W.Va.R.Evid. 702 qualifications of knowledge, experience, and training.

Article 14, Chapter 37 of the W.Va.Code is titled "The Real Estate Appraiser Licensing and Certification Act," see W.Va.Code § 37-14-1 (1990). W.Va.Code § 37-14-3(a) (1991) states, in relevant part, that "it is unlawful for any person, for compensation or valuable consideration, to prepare a valuation appraisal or a valuation appraisal report relating to real estate or real property in this state without first being licensed or certified as provided in this article." According to W.Va. Code § 37-14-2(a) (1992), in part, "`[a]ppraisal' means an analysis, opinion or conclusion prepared by a real estate appraiser relating to the nature, quality, value or utility of specified interests in, or aspects of, identified real estate or identified real property." Finally, W.Va.Code § 37-14-2(c) defines "[a]ppraisal report" as "any communication, written or oral, of an appraisal" and states that "the testimony of an appraiser dealing with the appraiser's analyses, conclusions or opinions concerning identified real estate or identified real property is deemed to be an oral appraisal report." The circuit court found that these code sections prohibit in-court opinion testimony as to the value of property by anyone other than a licensed or certified appraiser.

This same issue was recently addressed by this Court in Teter v. Old Colony Co., 190 W.Va. 711, 441 S.E.2d 728 (1994) where we rejected the appellant's assertion "that W.Va.Code, 37-14-2 and -3 (1991) ... preclude appraisal testimony in court unless the appraiser is licensed under the [Real Estate Appraiser Licensing and Certification] Act." Teter, 190 W.Va. at 723,441 S.E.2d at 740. In analyzing this issue in Teter, we first determined that there is a certain ambiguity in this code section as to the extent of its coverage under the phrase "the testimony of an appraiser dealing with the appraiser's analyses ... is deemed to be an oral appraisal report." Because this code section is ambiguous and in derogation of the common law, we found that it should be strictly construed. Accordingly, we concluded that "W.Va.Code, 37-14-1, et seq., is not designed to prevent an expert otherwise qualified under Rule 702 of the West Virginia Rules of Evidence from testifying with regard to the value of real property or the damages that may have resulted to it." Syllabus Point 8, Teter. We noted further, however, that even if W.Va.Code § 37-14-1 et seq., unambiguously prohibited anyone but a licensed or certified appraiser from testifying with regard to the value of real estate in a court proceeding, this prohibition would be contrary to the Rules of Evidence promulgated by this Court, pursuant to article eight, section three of our Constitution, and, thus, the prohibition would be void. For support, we quoted Syllabus Point 1 of Stern Brothers, Inc. v. McClure, 160 W.Va. 567, 236 S.E.2d 222 (1977) which states:

Under Article VIII, Section 8 of the Constitution of West Virginia (commonly known as the Judicial Reorganization Amendment), administrative rules promulgated by the Supreme Court of Appeals of West Virginia have the force and effect of statutory law and operate to supersede any law that is in conflict with them.

It is clear, therefore, that issues of expert testimony in general, and the specific issue before us in the instant case, is controlled by Rule 702 of the West Virginia Rules of Evidence. "Rule 702 ... is the paramount authority for determining whether or not an expert is qualified to give an opinion." Syllabus Point 6, in part, Mayhorn v. Logan Medical Foundation, 193 W.Va. 42, 454 S.E.2d 87 (1994). According to Rule 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

The DOH concedes that W.Va.Code § 37-14-1 et seq., do not prevent Mr. Heater from giving opinion testimony regarding the value of the property at issue, but avers that Mr. Heater's testimony should nevertheless be excluded under W.Va.R.Evid. 702. The DOH bases this contention on its allegation that Mr. Heater lacked sufficient knowledge of the facts to state an opinion thereon. According to the DOH, Mr. Heater had no knowledge of how much land the DOH was taking, which part of the property was being taken, how much and where the residue of the property would be situated, and the amount of damages, if any, to the residue.3 Therefore, concludes the DOH, Mr. Heater had no basis...

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