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Morgantown Mall Associates Limited Partnership v. City of Westover

Supreme Court of West Virginia

September 1, 2017

Morgantown Mall Associates Limited Partnership and Rural King Realty, LLC, Plaintiffs Below, Petitioners
v.
The City of Westover, and County Commission of Monongalia County, Defendants Below, Respondents

         (Monongalia County 13-C-798)

          MEMORANDUM DECISION

         Petitioners, Morgantown Mall Associates Limited Partnership and Rural King Realty, LLC, [1] by counsel John Philip Melick, appeal two orders of the Circuit Court of Monongalia County regarding the annexation of about 102 acres of petitioners' real property by Respondent City of Westover ("Westover"). In the first order, dated July 31, 2015, the circuit court found it did not have jurisdiction to rule on petitioners' petition for writ of error to review an order by Respondent County Commission of Monongalia County (the "Commission") that approved the annexation. In the second order, dated August 29, 2016, the circuit court granted judgment on the pleadings to Westover and thereby issued a declaratory judgment in favor of Westover. The latter order also dissolved a preliminary injunction granted to petitioners soon after they filed this action. Respondent Westover, by counsel Timothy P. Stranko, Matthew D. Elshiaty, and Lindsay M. Gainer, filed a response. Respondent Commission, by counsel Phillip M. Magro, also filed a response.

         This Court has considered the parties' briefs and the record on appeal. 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. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Westover sought to annex 102 acres of developed, commercial property owned almost entirely by petitioners. Its first two attempts were unsuccessful. 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, petitioners responded with a "Verified Complaint for Injunctive and Declaratory Relief and Petition for Writ of Error." As this title suggests, petitioners sought three forms of relief: an immediate injunction to stop the annexation until the circuit court could rule on the merits; a writ of error that the Commission's order was unenforceable; and a declaratory judgment that the annexation statutes are unconstitutional. On December 2, 2013, the circuit court entered an "Order Granting Temporary Restraining Order and Preliminary Injunctive Relief" to 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 petitioners' petition for a writ of error because petitioners failed to comply with state law regarding writs of error. Specifically, the circuit court found petitioners failed to timely file a bill of particulars as required by West Virginia Code § 58-3-3, and failed to timely submit an original record of the proceedings as required by West Virginia Code § 58-3-4.[2] 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). 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. Further, on March 16, 2016, Westover filed a motion to dissolve the December 2, 2013, "Order Granting Temporary Restraining Order and Preliminary Injunctive Relief."

         Following various hearings, on August 29, 2016, the circuit court granted Westover's motion for judgment on the pleadings and declined to grant a declaratory judgment in favor of petitioners. Specifically, the circuit court found that: (1) Westover did not unlawfully scheme to annex petitioners' real property; (2) that West Virginia Code § 8-6-5 is not void for vagueness; (3) that the annexation did not violate petitioners' due process or equal protection rights; (4) that West Virginia Code § 8-6-5 is a proper delegation of legislative authority; and (5) that the subject annexation did not constitute an unlawful taking. The circuit court also dissolved the December 2, 2013, "Order Granting Temporary Restraining Order and Preliminary Injunctive Relief."

         Petitioners now appeal both the July 31, 2015, and August 29, 2016, orders.

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

         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.

         West Virginia Code §§ 8-6-5(i) and -16 provide the circuit court with jurisdiction to review a county commission's final order regarding annexation, but specify that an appealing party must seek review "in accordance with provisions of article three, chapter fifty-eight of this code[.]" See West Virginia Code §§ 58-3-1 to -7. West Virginia Code § 58-3-3 requires that an appealing party include a bill of exceptions:

[a]t the trial or hearing of any matter by the county court as to which an appeal will lie under section one of this article, a party may except to any opinion of the court and tender a bill of exceptions to such opinion. . . . Or, in lieu of such bill of exceptions, such exception may with like effect be shown by certificate . . . signed by such commissioners, or a majority of them. . . . A party to any such proceeding, as to which an appeal will lie as aforesaid may avail himself of any error appearing on the record by which he is prejudiced without obtaining a formal bill of exceptions, provided he objects or excepts on the record to the action of the court complained of, and provided it is such a matter as can be considered without a formal bill of exceptions.

         Moreover, West Virginia Code § 58-3-4 provides that such an appeal "shall be presented within four months" following the entry of the county commission's order and "shall be accompanied by the original record of ...


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