CHARLESTON – The West Virginia Supreme Court of Appeals has voted to uphold a lower court’s decision to allow the City of Westover to annex the Morgantown Mall.

“This Court has considered the parties’ briefs and the record on appeal,” the Sept. 1 memorandum decision states. “The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the Court finds no substantial question of law and no prejudicial error.”

Westover sought to annex 102 acres of developed, commercial property owned almost entirely by Morgantown Mall Associates and Rural King Realty.

“Its first two attempts were unsuccessful,” the decision states. “However, on Westover’s third attempt, the Commission granted Westover’s annexation petition by final order entered October 2, 2013, and thereby annexed the acreage via a ‘minor boundary adjustment’ under West Virginia Code § 8-6-5.”

On October 17, 2013, the petitioners responded with a verified complaint for injunctive and declaratory relief and petition for writ of error.

On December 2, 2013, the circuit court entered an order granting temporary restraining order and preliminary injunctive relief to the petitioners, which preliminarily enjoined Westover from exercising municipal authority over petitioners’ properties.

By order entered July 31, 2015, the circuit court found that it did not have jurisdiction over the petitioners’ petition for a writ of error because the petitioners failed to comply with state law regarding writs of error.

The circuit court found the petitioners failed to timely file a bill of particulars as required by West Virginia Code and failed to timely submit an original record of the proceedings as required by West Virginia Code. However, the circuit court did not rule on petitioners’ request for declaratory relief.

“Petitioners appealed the July 31, 2015, order to this Court (No. 15-0861),” the decision states. “By order entered September 4, 2015, we refused to docket the appeal on the ground that the July 31, 2015 order was not a final appealable order.”

On October 1, 2015, Westover filed a motion to dismiss or, in the alternative, a motion for judgment on the pleadings that addressed petitioners’ remaining claims for injunctive and declaratory relief.

On March 16, 2016, Westover filed a motion to dissolve the December 2, 2013, order granting temporary restraining order and preliminary injunctive relief.

On appeal, petitioners first argue that the circuit court erred in finding it lacked jurisdiction over their writ of error due to petitioners’ failure to timely perfect their petition for judicial review of the county commission’s order.

The Supreme Court has concluded that the failure to comply with the statutory requirements to perfect the appeal of an annexation order is fatal to the appeal. Moreover, the failure to file a bill of particulars in the appeal of an annexation order is jurisdictional and may be raised sua sponte by the court.

The petitioners argued that, despite the language of West Virginia Code § 58-3-3, it was not required to file a bill of particulars and, instead, included “thoroughly specified objections” in their petition for a writ of error.

“As for their failure to timely file the original record of the Commission’s proceedings, petitioners argue that they cited to the ‘video record’ in their ‘Verified Complaint for Injunctive and Declaratory Relief and Petition for Writ of Error,’” the decision states.

On February 5, 2014, the circuit court required petitioners to submit the original record in writing.

The petitioners claim that the video record of the proceedings before the commission had to be transcribed, reviewed and assembled, which took many months because of omissions and/or errors made by the firm hired to transcribe the videos.

“Our analysis centers solely upon the petitioners’ failure to timely file the original record before the Commission,” the decision states. “In petitioners’ brief to this Court, they do not address, in any fashion, whether they provided a video record or any other record to the circuit court within four months of the Commission’s order.”

The Supreme Court affirmed the circuit court’s conclusion that it lacked jurisdiction to rule on the petition for a writ of error due to petitioners’ “failure to comply with mandatory statutory jurisdictional requirements.”

“Because we find that the circuit court lacked jurisdiction with regard to petitioners’ petition for writ of error on this ground, we need not address the circuit court’s findings with regard to petitioners’ decision not to file a bill of particulars,” the decision states.

The vote was decided 4-1 at the state level, with Justice Robin Davis the lone dissenting voice on the legal battle over the 2-1 2013 vote by the Monongalia County Commission allowing Westover the 102-acre minor boundary adjustment.

W.Va. Supreme Court of Appeals case number: 16-0835

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