Justices say DOH erred in seeking new trial

By Kyla Asbury | May 21, 2015


CHARLESTON – The West Virginia Supreme Court of Appeals ruled that the West Virginia Department of Highways erred in seeking a new trial.


A party’s failure to file a post-verdict motion for judgment as a matter of law under Rule 50(b) of the West Virginia Rules of Civil Procedure precludes this Court from reviewing an insufficiency of the evidence claim, according to the May 13 majority opinion.


Justice Robin Jean Davis authored the majority opinion. Justice Menis Ketchum concurred, and authored his own opinion.


The appeal was brought by West Virginia Department of Transportation, Division of Highways and Paul A. Mattox Jr., the secretary/commissioner of highways, from an adverse judgment in the Hardy Circuit Court.


"In seeking a new trial, DOH has set out nine assignments of error," the opinion states. "The respondent ... asks this court to affirm the judgment below. Upon our review of the parties' briefs and oral arguments, the appendix records designated for our consideration, and the pertinent authorities, we affirm."


On June 4, 1980, Margaret Z. Newton sold approximately 37 acres of land in Hardy County to James S. Parsons and the property deed reserved all mineral rights under the land to Newton.


In 2003, the DOH began testing soil on parts of the property purchased by Parsons in preparation for the DOH constructing a portion of the Corridor H highway through the land.


The soil tests revealed significant deposits of limestone and, by deed dated Oct. 7, 2004, the DOH acquired a right-of-way from Parsons, that involved approximately 6.7 acres of his land in exchange for $33,500.


The DOH began construction of the highway during 2006 through 2009, and, in order to build the highway, had to excavate approximately 236,187 tons of limestone from the property. The DOH did not contact Newton, the owner of the limestone, even though the DOH appears t have used much of the limestone in building the highway.


In May 2010, Newton filed a mandamus action against the DOH seeking to force it to institute a condemnation proceeding for the limestone removed from her mineral reservation in the land and an agreed order was entered in March 2011, whereby the DOH was required to institute a condemnation proceeding against the limestone interests of Newton.


After the agreed order was entered, the DOH filed an instant condemnation action seeking a determination of whether Newton was entitled to compensation for removal of the limestone and the case was submitted to a condemnation commission on Sept. 20, 2013, who returned a verdict favorable to the DOH. Newton rejected the decision and demanded a jury trial.


On April 7, 2014, the case proceeded to trial with a 12-person jury and an order of judgment was entered on April 16, 2014, awarding Newton $941,304.53. The DOH did not file a post-trial motion for new trial or judgment as a matter of law, but did file an instant appeal.


The majority opinion states that the state Supreme Court holds that a party's failure to file a post-verdict motion for judgment as a matter of law under Rule 50(b) of the West Virginia Rules of Civil Procedure precludes this court from reviewing an insufficiency of the evidence claim.


"In the instant case, DOH argues that Ms. Newton’s evidence was insufficient with respect to showing marketability of the limestone; therefore, DOH claims, it was entitled to judgment as a matter of law," the opinion states. "Under our holding, we cannot reach the issue of the sufficiency of the evidence because DOH failed to file a post-verdict motion for judgment as a matter of law as required under Rule 50(b)."


The court affirmed the circuit court's order of judgment that was entered on April 16, 2014.


In his concurring opinion, Ketchum wanted to point out to attorneys handling eminent domain cases that there in an exception to the rule that property is valued as of the date of taking.


"When there is a decrease in the value of the condemned property prior to the date of taking which is caused by the public improvement project, the decreases, in some instances, may be disregarded in determining just compensation," he said.


The WVDOT is represented by Clarence E. Martin III and Susan R. Snowden of Martin & Seibert.


Newton is represented by J. David Judy III of Judy & Judy.


W.Va. Supreme Court of Appeals case number: 14-0428

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