CHARLESTON — The West Virginia Supreme Court ordered a circuit court to address the timeliness of a motion to intervene.
The court reversed a portion of the March 10, 2020, order that denied the petitioner’s motion to intervene, according to the March 23 memorandum decision.
"We remand this case and direct the circuit court to make appropriate findings of fact and conclusions of law addressing the timeliness of petitioner’s motion to intervene," the court wrote. "Should the circuit court determine that the motion was timely filed, it shall grant the motion to intervene."
The dispute between Cunningham Energy and Kanawha County Board of Education involves a 34.66-acre parcel of land in Kanawha County and the mineral interests beneath it and adjacent to it.
Patsy Haas had owned the surface of the parcel until her death in 2011 and Cunningham obtained an interest in the surface of the parcel after that.
In 2018, Cunningham and Vesta O&G Holdings entered an agreement where Vesta would hold Cunningham's interests in certain properties, including this one. In 2019, a memorandum of understanding was filed that acknowledged that the land would likely be sold or condemned so that the respondent could build a school on it.
"Petitioner obtained a report from a licensed professional engineer estimating the present value of future revenue that would be lost if petitioner was unable to drill seven horizontal wells," the decisions States. "That report estimated the lost revenue would total $58,800,000. The report also estimated that an additional $21,000,000 would have been paid to the royalty owners during the estimated years of production."
Cunningham and Vesta O&G Holdings offered to sell their interests in the parcel to the school board for $42 million, but the school board did not accept the offer.
Cunningham filed a motion to intervene in the case involving the property after the school board petitioned to have the property condemned and Vesta was named in the case, but not Cunningham.
"The circuit court found that, as of the date the petition for condemnation was filed, petitioner owned no interest in the subject property because petitioner had conveyed its interest in the surface of the parcel and its leasehold interests in the underlying minerals to Vesta," the Supreme Court wrote. "The circuit court also found that the lis pendens was filed after the petition for condemnation was filed. The circuit court, in denying the motion to intervene, concluded that petitioner had no interest in the subject property and, therefore, was not a proper party to the condemnation proceeding."
The court, however, disagreed. it found that it was unable to conclusively determine whether Cunningham is entitled to intervene in the condemnation action and that the case should be remanded for the circuit court to make those determinations.
W.Va. Supreme Court case number 20-0346