WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS Petitioner Below, Petitioner
DOUGLAS R. VEACH, CATHERINE D. VEACH, ARVELLA PIERCY, ARETTA TURNER, ROSELLA A. VEACH, SHEILA KAY VEACH, SHERWOOD S. VEACH, SHARON A. MEHOK, F. CRAIG VEACH, L. COLEMAN VEACH, REGINALD K. VEACH, JEFFREY T. VEACH, ERIC C. VEACH, CHRISTOPHER K. VEACH, ST. MARY'S CATHOLIC CHURCH AND EPIPHANY OF THE LORD CEMETERY, AND THE ROMAN CATHOLIC DIOCESE WHEELING-CHARLESTON, Respondents Below, Respondents
Submitted: January 17, 2017
from the Circuit Court of Hardy County The Honorable Andrew
N. Frye, Jr., Judge Civil Action No. 11-C-36.
L. Summers, Esq. Summers Law Office, PLLC Charleston, West
Virginia Counsel for the Petitioner
David Judy, III, Esq. Judy & Judy Moorefield, West
Virginia Counsel for the Respondents
"A circuit court's entry of summary judgment is
reviewed de novo." Syllabus Point 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755
"A motion for summary judgment should be granted only
when it is clear that there is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to
clarify the application of the law." Syllabus Point 3,
Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New
York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
"Where the issue on an appeal from the circuit court is
clearly a question of law or involving an interpretation of a
statute, we apply a de novo standard of
review." Syllabus Point 1, Chrystal R.M. v. Charlie
A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
"The trial [court] . . . is vested with a wide
discretion in determining the amount of . . . court costs and
counsel fees; and the trial [court's] . . . determination
of such matters will not be disturbed upon appeal to this
Court unless it clearly appears that [it] has abused [its]
discretion." Syllabus Point 3, in part, Bond v.
Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959).
"A stipulation of counsel may be set aside, upon the
request of one of the parties, on the ground of improvidence
provided both parties can be restored to the same condition
as when the agreement was made." Syllabus, Cole v.
State Comp. Comm'r, 114 W.Va. 633, 173 S.E.263
circuit court is afforded wide discretion in determining
whether or not a party should be relieved of a stipulation,
and such decision should not be set aside absent an abuse of
"Plaintiff was conclusively bound by allegations of
fact, material or immaterial, contained in his
pleadings." Syllabus, Pettry v. Hedrick, 123
W.Va. 107, 13 S.E.2d 401 (1941).
"Collateral estoppel is designed to foreclose
relitigation of issues in a second suit which have actually
been litigated in the earlier suit even though there may be a
difference in the cause of action between the parties of the
first and second suit." Syllabus Point 2, in part,
Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216
"Collateral estoppel will bar a claim if four conditions
are met: (1) The issue previously decided is identical to the
one presented in the action in question; (2) there is final
adjudication on the merits of the prior action; (3) the party
against whom the doctrine is invoked was a party or in
privity with a party to a prior action; and (4) the party
against whom the doctrine is raised had a full and fair
opportunity to litigate the issue in the prior action."
Syllabus Point 1, State v. Miller, 194 W.Va. 3, 459
S.E.2d 114 (1995).
"Where attorney's fees are sought against a third
party, the test of what should be considered a reasonable fee
is determined not solely by the fee arrangement between the
attorney and his client. The reasonableness of attorney's
fees is generally based on broader factors such as: (1) the
time and labor required; (2) the novelty and difficulty of
the questions; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of other employment by
the attorney due to acceptance of the case; (5) the customary
fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8)
the amount involved and results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the
undesirability of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in
similar cases. Syllabus Point 4, Aetna Cas. & Sur.
Co. v. Pitrolo¸ 176 W.Va. 190, 343 S.E.2d 156
"When a statute is clear and unambiguous and the
legislative intent is plain, the statute should not be
interpreted by the courts, and in such case it is the duty of
the courts not to construe but to apply the statute."
Syllabus Point 5, State v. General Daniel Morgan Post No.
548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).
"Statutes which relate to the same subject matter should
be read and applied together so that the Legislature's
intention can be gathered from the whole of the
enactments." Syllabus Point 3, Smith v. State
Workmen's Compensation Comm'r, 159 W.Va. 108,
219 S.E.2d 361 (1975).
West Virginia Department of Transportation, Division of
Highways ("DOH"), appeals the Circuit Court of
Hardy County's March 2, 2016 order granting summary
judgment against DOH and awarding attorneys' fees and
costs to Respondents ("Veach Heirs") in this
appeal, DOH asserts that the circuit court erred by refusing
to set aside a stipulation entered into by its prior counsel
that conceded ownership of limestone to the Veach Heirs as
part of a mineral reservation. The DOH now contends that the
Veach Heirs are not entitled to compensation for the
limestone because limestone is not subject to a general
mineral reservation and, therefore, the Veach Heirs do not
own it. DOH further contends the circuit court erred in
relying on these stipulations and applying the doctrine of
collateral estoppel to grant the Veach Heirs' motion for
summary judgment. Finally, DOH argues the circuit court erred
in finding that it acted in bad faith and awarding costs and
attorneys' fees to the Veach Heirs.
Veach Heirs assert two cross-assignments of error. First,
they argue that the circuit court erred in refusing to award
attorneys' fees based upon their contingency fee contract
with their counsel. The Veach Heirs also assert that the
circuit court erred by ordering the statutory interest to
commence on the date the condemnation proceeding was filed
rather than the date the mandamus proceeding was filed.
consideration of the parties' briefs and arguments, the
submitted record and pertinent authorities, we affirm the
circuit court's order granting summary judgment to the
Veach Heirs and setting the date of commencement of interest
from the date of the filing of the condemnation petition.
However, we reverse the circuit court's rulings on
attorneys' fees and costs and we remand the case with
instructions to hold a hearing to provide both parties the
opportunity to be heard on the issues of whether the Veach
Heirs are entitled to recover attorney's fees and costs
and, if so, the reasonableness of the amount to be awarded.
FACTUAL AND PROCEDURAL BACKGROUND
1968, Anna M. Veach conveyed to her three sons approximately
405 acres of real estate in Hardy County subject to a mineral
reservation. The conveyance reserved to Ms. Veach "all
minerals underlying the tracts of real estate." When Ms.
Veach died on July 25, 2006, the Veach Heirs inherited her
2005, DOH began construction on a portion of the highway
known as Corridor H near the Veach property. In the course of
construction, DOH utilized limestone removed from the Veach
property and a nearby property belonging to Margaret Z.
Newton. In October 2010, the Veach Heirs filed a petition for
writ of mandamus in the Circuit Court of Hardy County seeking
to force DOH to institute a condemnation proceeding for the
limestone excavated from their property. Construction on this
section of Corridor H was completed and opened to the public
on October 27, 2010.
discovery relating to DOH's duty to institute
condemnation proceedings, the parties entered into an agreed
order in March 2011 providing that DOH would institute a
condemnation proceeding against the Veach Heirs' mineral
interest, which included the limestone. Consequently, the
mandamus proceeding was voluntarily dismissed. A similar
agreed order was entered in a separate mandamus proceeding
relating to the Newton property.
resulting condemnation action relating to the Veach property
commenced by petition filed on May 27, 2011, while the
condemnation action relating to the Newton property commenced
on April 29, 2011. The cases were consolidated for pre-trial
hearings because, in the words of counsel for DOH, they dealt
with "exactly the same" issues. Several pre-trial
rulings were made to clarify the trial issues, including that
DOH's failure to first contact Veach and Newton before
the commencement of construction denied them the opportunity
to determine the highest and best use of the limestone and
the just compensation they were each entitled to receive; and
(2) DOH entered onto Veach and Newton's respective
properties and excavated and appropriated limestone without
their permission and by so doing, acted in bad faith and in a
willful trespass against their interests. The circuit court
also adopted identical jury charges, instructions and verdict
forms for both cases other than non-substantive differences.
Regarding the Veach property specifically, the parties
stipulated during a hearing in 2013 as follows:
1. That Anna M. Veach conveyed surface only to three (3) of
her sons on August 31, 1968, reserving unto herself fee
simple ownership of all minerals underlying the Veach real
estate, without limitation or restriction, and which
reservation and exception is free of ambiguity and clear in
2. That the minerals reserved by Anna M. Veach include
limestone and gravel as defined by the Court.
prior to trial in the Newton matter, the parties in that case
stipulated that "the minerals reserved by Margaret Z.
Newton include limestone ...