CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that a circuit court erred in granting summary judgment against the landowner in a lawsuit.

“Condemnation actions are sui generis, unique and peculiar, when considered against other civil actions,” the June 3 opinion states. “The West Virginia Constitution provides that, when land is taken or damaged for a public use, just compensation shall, ‘when required by either of the parties ... be ascertained by an impartial jury of twelve freeholders.’”

In the appeal from Kanawha Circuit Court, the Supreme Court was asked to examine a circuit court’s entry of summary judgment against a landowner in a condemnation proceeding.

“As we discuss … the parties and the circuit court acknowledged that the landowner had asked for a jury trial, and that the landowner was prepared to offer her opinion as to the value of the land taken,” the opinion states. “The circuit court therefore erred in granting summary judgment against the landowner.”

Chief Justice Menis Ketchum authored the majority opinion.

This is a condemnation action by the Kanawha County Commission to take a 10-acre tract of land near Coal Branch Heights called Nutter Farm, and the commission determined that Nutter Farm was the best site to deposit material removed from the high hill near the flight path of planes using Yeager Airport’s runway.

On Nov. 13, 2012, William Watson Nutter and Charles Curtis Nutter, who had each inherited an undivided one-third interest in the property, signed an option agreement to sell their one-third interests to a developer. Loretta Lynn Gomez refused to sell her one-third share.

The commission later purchased the sons’ two-thirds interest in the farm from the developer and on June 14, 2013, it filed a condemnation petition against Gomez, seeking to acquire a fee simple interest in her remaining one-third undivided interest in all 10 acres of the farm.

“The Commission stated that it sought to permanently take the land ‘for the purpose of improving, maintaining and operating Yeager Airport,’” the opinion states. “Gomez objected to the petition, claiming the Commission’s stated reasons did not constitute a proper ‘public use’ for taking her land.”

Kanawha Circuit Court then determined that the commission’s stated purposes for taking the properly were a proper public use and appointed condemnation commissioners to determine the value of her one-third interest.

On Oct. 15, 2013, the condemnation commissioners valued Gomez’s land at $33,335 and the court permitted the commission to pay her that sum and granted the commission immediate possession of Nutter Farm.

Counsel for Gomez timely objected the valuation and demanded a jury trial and it was set for February 2015. However, following the completion of discovery, the commission made a motion for summary judgment and the circuit court granted the commission’s motion for summary judgment on March 12, 2015.

Gomez then appealed the circuit court’s summary judgment order and challenged five pretrial rulings of the circuit court.

The Supreme Court said that genuine issues of material fact existed for resolution by the jury concerning the just compensation due to Gomez for her interest in the Nutter Farm and it was error for the circuit court to grant summary judgment to the commission.

The Supreme Court found no error in three of the circuit court’s pretrial rulings, however, it found that striking Gomez’s claims as a sanction for her failure to appear at her deposition was error and that the circuit court erred in taking judicial notice of the condemnation commissioners’ report on the value of the land.

“Lastly, we find the circuit court erred in granting the commission’s motion for summary judgment,” the opinion states. “Gomez has a right to testify to the value of her interest in the property on the date of the taking by the Commission. The circuit court’s March 12, 2015, order is reversed and the case is remanded for further proceedings.”

Gomez is represented by Shannon M. Bland of Bland & Bland Attorneys At Law.

The commission is represented by Charles R. Bailey, Kelly C. Morgan and Daniel T. LeMasters of Bailey & Wyant. PLLC.

West Virginia Supreme Court of Appeals case number: 15-0342

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Bailey & Wyant PLLC Bland & Bland Attorneys At Law L.C. West Virginia Supreme Court

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