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West Virginia Lottery v. A-1 Amusement, Inc.

Supreme Court of West Virginia

November 13, 2017

WEST VIRGINIA LOTTERY, WEST VIRGINIA LOTTERY COMMISSION, and ALAN LARRICK, Director of the West Virginia Lottery, Defendants Below, Petitioners
v.
A-1 AMUSEMENT, INC., ACTION GAMING, INC., ADVANCED LOTTERY TECHNOLOGIES, LLC, BLUE DIAMOND, LLC, CD 3 LLC, CLAY MUSIC CORP., COACH'S CLUB ASSOCIATION, DUSTYN ENTERPRISES, INC., ELM ROOM, INC., FABULOUS 50'S CAFÉ, LLC, GRIDCOACH, LLC, HOT 5 STOP, LLC, JERRY'S BAR ASSOCIATION, LEEJAY, INC., LL&M, LLC, MIMI'S, INC., MOOSE NITRO LODGE 565, MOUNTAINEER MUSIC, LLC, PDM ASSOCIATES OF WEIRTON, LLC, PALATOKAS ASSOCIATES, LLC, PATTY'S, INC., PROGRESSIVE VIDEO LOTTERY, LTD., RANDOM WORLD, LTD., TA VENDING, LLC, THE LOUNGE, LLC, TIFFANY'S, LLC, TRANS-ALLEGHENY ENTERPRISES, LLC, WHEELING COIN, LLC, WOLDAP, LLC, WV "CAFÉ" HOLDING COMPANY, LLC, and WEST VIRGINIA AMUSEMENT & LIMITED VIDEO LOTTERY ASSOCIATION, INC., Plaintiffs Below, Respondents

          Submitted: October 18, 2017

         Appeal from the Circuit Court of Kanawha County The Honorable James C. Stucky, Judge Civil Action Nos. 15-C-914 through -946

          Patrick Morrisey, Esq. Attorney General Katherine Schultz, Esq. Senior Deputy Attorney General Mary M. Downey, Esq. Assistant Attorney General Sean M. Whelan, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Petitioners

          William C. Brewer, Esq. J. Tyler Slavey, Esq. Brewer & Giggenbach, PLLC Morgantown, West Virginia Counsel for the Respondents

          SYLLABUS BY THE COURT

         1. "A circuit court's denial of a motion to dismiss that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the 'collateral order' doctrine." Syllabus Point 1, W.Va. Bd. of Educ. v. Marple, 236 W.Va. 654');">236 W.Va. 654, 783 S.E.2d 75 (2015).

         2. The statutory eminent domain procedure, and therefore inverse condemnation, can, in an appropriate case, be utilized to seek compensation for personal property.

         3. Pursuant to Rule 71B of the West Virginia Rules of Civil Procedure, the proper procedure for pursuing inverse condemnation is to file a complaint in circuit court seeking a writ of mandamus to compel the state to institute condemnation proceedings.

         4. "Suits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits of the State's liability insurance coverage, fall outside the traditional constitutional bar to suits against the State." Syllabus Point 2, Pittsburgh Elevator Co. v. W.Va. Bd. of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983).

          5. "In the future, this Court will not review suits against the State brought under the authority of W.Va. Code § 29-12-5 unless it is alleged that the recovery sought is limited to the applicable insurance coverage and the scope of the coverage and its exceptions are apparent from the record." Syllabus Point 3, Parkulo v. W.Va. Bd. of Probation and Parole, 199 W.Va. 161');">199 W.Va. 161, 483 S.E.2d 507 (1996).

         6. "The state insurance policy exception to sovereign immunity, created by West Virginia Code § 29-12-5(a)(4) [2006] and recognized in Syllabus Point 2 of Pittsburgh Elevator Co. v. W.Va. Bd. of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983), applies only to immunity under the West Virginia Constitution and does not extend to qualified immunity. To waive the qualified immunity of a state agency or its official, the insurance policy must do so expressly, in accordance with Syllabus Point 5 of Parkulo v. W.Va. Bd. of Probation & Parole, 199 W.Va. 161');">199 W.Va. 161, 483 S.E.2d 507 (1996)." Syllabus Point 2, W.Va. Bd. of Educ. v. Marple, 236 W.Va. 654');">236 W.Va. 654, 783 S.E.2d 75 (2015).

          OPINION

          WALKER JUSTICE.

         This appeal concerns a dispute between the West Virginia State Lottery, the Lottery Commission, the Lottery Director, [1] (collectively, the State Lottery) and certain entities (Permit Holders) who were issued permits to operate limited video lottery game terminals (LVL terminals). The dispute arose after the State Lottery instructed the Permit Holders that they would be required to use a different software program at their expense. The Permit Holders sued both the State Lottery and IGT, the vendor responsible for manufacturing the software. Against the State Lottery, the Permit Holders allege a taking without just compensation (Count I), deprivation of property without due process (Count II), and civil conspiracy (Count VII). On appeal, the State Lottery challenges the circuit court's denial of a motion to dismiss on the grounds that it waived its sovereign and qualified immunity defenses. Further, the State Lottery alleges that the circuit court erred because it did not require the Permit Holders to limit their claims for constitutional violations to the limits of the state's insurance policy.

         For the reasons set forth below, we conclude that the State Lottery did not waive its rights to sovereign and qualified immunity. With respect to the specific allegations contained in the Permit Holders' Amended Complaint, we find as follows: (1) the appropriate procedure seeking just compensation (Count I) through the process of inverse condemnation, is for the Permit Holders to file a complaint seeking a writ of mandamus requiring the State Lottery to institute condemnation proceedings; (2) to the extent that Count II seeks money damages from the state treasury it is barred by sovereign immunity unless the insurance policy exception is invoked, in which case recovery is limited to the limits of the state's insurance policy; and (3) because Counts II and VII are claims brought under the insurance policy exception, the State Lottery may assert qualified immunity as a defense. Because the circuit court did not make any findings or inquiries relating to qualified immunity, this case must be remanded for an exposition and determination on the facts pertinent to that issue. Accordingly, we affirm in part, reverse in part, and remand this matter to the circuit court for determination of whether the State Lottery is qualifiedly immune from Counts II and VII under these circumstances.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The Limited Video Lottery Act (the Act), [2] authorizes the West Virginia Lottery to award permits to private parties enabling them to operate LVL terminals. After a bidding process, successful bidders are awarded a ten-year permit to operate the LVL terminals. These computer-based LVL terminals require certain software or "protocols" in order to communicate with the West Virginia Lottery's central computer system. IGT, a private Nevada corporation, produces and distributes both the LVL terminals and the protocols for the West Virginia Lottery. Specifically, IGT produced two protocols for the LVL terminals capable of communicating with the West Virginia Lottery's central computer system - ICIS and SAS. Each LVL terminal operates on either the ICIS protocol or the SAS protocol. The Permit Holders' LVL terminals operate on the ICIS protocol.

         Prior to the start of the bidding process for the LVL permits, the West Virginia Lottery held educational seminars for potential bidders. The Permit Holders allege that IGT representatives also attended the seminars. The Permit Holders further allege that at these seminars, the Director of the West Virginia Lottery (Lottery Director) and/or his staff told them that both the ICIS and SAS protocols could be used for the entirety of the ten-year permit period. After three rounds of bids in October 2010, February 2011, and June 2011, the bids were awarded to the Permit Holders and others for the period of July 1, 2011 through June 30, 2021.[3]

         The Permit Holders allege that in 2012, the Lottery Director discussed the upcoming expiration of the West Virginia Lottery's contract with IGT relating to the central computer system. On October 16, 2012, a Vice President of IGT wrote to the Lottery Director and stated that "as a follow-up to their telephone conversation, the company would no longer license or support the ICIS protocol after December 31, 2015." An association representing the Permit Holders contacted the Lottery Director to express concerns of its member Permit Holders regarding the discontinuation of the ICIS protocol and the impact on Permit Holders who would have to either purchase new LVL terminals or conversion kits to enable their terminals to communicate using the SAS protocol. In response, the Lottery Director negotiated with IGT to extend the ICIS protocol compatibility through the end of 2017 and to allow IGT to exclusively sell "IGT conversion kits" to convert ICIS protocol terminals into SAS protocol terminals.

         In a newsletter to the Permit Holders, the West Virginia Lottery advised that ICIS protocol terminals would be inoperable on January 1, 2018, and that any costs incurred in the conversion to the SAS protocol would be borne by operators, retailers, and/or permit holders. If the Permit Holders chose not to convert their terminals to the SAS protocol, those LVL terminals would be considered illegal gaming devices under the Act, as they would no longer be under the purview of the West Virginia Lottery.

         The Permit Holders filed a civil action against the State Lottery as well as IGT.[4] Against the State Lottery, the Permit Holders allege a regulatory taking of their property without just compensation in violation of the West Virginia and United States Constitutions (Count I); deprivation of a property right without due process in violation of the due process clause of the West Virginia and United States Constitutions (Count II); and civil conspiracy (Count VII).[5]

         The State Lottery filed a motion to dismiss the complaint (First Motion to Dismiss) arguing, among other things, that the claims were barred because the pleadings were insufficient for failure to limit the recovery sought to the state's insurance coverage. The State Lottery cited this Court's holding in syllabus point three of Parkulo v. West Virginia Board of Probation and Parole[6] with regard to its requirement that suits brought under the exception to sovereign immunity based on the state's purchase of insurance coverage limit the recovery sought to the limits of the state's insurance policy. Additionally, in a footnote, the State Lottery argued: "Because the Plaintiffs' Complaint is untimely, it is unnecessary for the State Defendants to assert any and all immunities it has to the Plaintiffs' Complaint. However, these Defendants reserve their right to assert any and all immunities available to them, including, but not limited to, constitutional[7] and qualified immunity."

         Based on Parkulo, the Permit Holders were given leave to amend their complaint. In their Amended Complaint, the Permit Holders limited the recovery sought for their civil conspiracy claim to the applicable insurance policy limits, but declined to do so for their regulatory taking and due process claims. The Permit Holders reasoned that the measure of damages for their regulatory taking and due process claims is governed by the just compensation standard applicable to relief awarded under the takings clause, [8] not the insurance policy limits. The State Lottery then filed a second motion to dismiss (Second Motion to Dismiss) asserting that the Amended Complaint did not limit the constitutional claims to the insurance policy limits, and further asserting that the claims were barred by the state's sovereign and qualified immunity. The circuit court denied the Second Motion to Dismiss, determining that the regulatory taking and due process claims did not sound in tort and, therefore, the recovery need not be limited to the insurance policy limits because they did not fall under the Parkulo holding. As to the State Lottery's invocation of sovereign and qualified immunity, the circuit court found that the State Lottery had waived immunity by failing to raise it in the First Motion to Dismiss. It is from this order that the State Lottery appeals.

         II. STANDARD OF REVIEW

         Although the denial of a motion to dismiss is, under normal circumstances, not properly before this court because it is not a final, appealable order, "we recognize an exception to this general rule 'when the defense is in the nature of an immunity.'"[9]Immunity determinations are excepted because "the entitlement is an immunity from suit rather than a mere defense to liability; and like absolute immunity, it is effectively lost if the case is erroneously permitted to go to trial."[10] Moreover, "[any] ruling denying the availability of immunity fully resolves the issue of a litigant's obligation to participate in litigation" and therefore should be resolved at the outset of litigation.[11] Thus, we have held that "[a] circuit court's denial of a motion to dismiss that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the 'collateral order' doctrine."[12] Likewise, when the issue relates to sovereign immunity, it is well-settled that "the denial of a substantial claim of absolute immunity is an order appealable before final judgment[.]"[13] In the context of immunity determinations, we have discussed that we review de novo a circuit court's order denying a motion to dismiss.[14] With these standards in mind, we turn to the parties' arguments.

         III. ANALYSIS

         A. Waiver

         As a preliminary matter, we must determine whether the State Lottery waived the right to sovereign or qualified immunity by failing to substantively raise it in the First Motion to Dismiss. We discussed a factually similar situation in Marple, in which the state defendants had not raised the immunity defense in their motion to dismiss, but had argued at length on the issue of qualified immunity after the motion was filed.[15] In determining that the state defendants had not waived qualified immunity, this Court reasoned:

[Q]ualified immunity can be pled at various stages in a case. As one court noted, "qualified immunity is a question of law that may be generally asserted (1) on a pretrial motion to dismiss under Rule 12(b)(6) for failure to state a claim; (2) as an affirmative defense in the request for judgment on the pleadings pursuant to Rule 12(c); (3) on a summary judgment motion pursuant to Rule 56(e); or (4) at trial."[16]

         Expounding on the criteria for evaluating the timeliness of an assertion of immunity, this Court discussed that "failure to raise an affirmative defense in a motion to dismiss does not result in waiver when 'there is no unfair surprise or prejudice to the opposing party'" and determined that under the procedural facts of the case, the timing of the state defendant's assertion of qualified immunity did not result in unfair surprise or prejudice.[17]

         We find the current situation factually analogous, and an even clearer example that the State Lottery did not waive immunity. In this case, although the State Lottery did not substantively raise either its sovereign or qualified immunity defenses in the First Motion to Dismiss, it explicitly reserved the right to assert those immunities in a footnote. Under these circumstances, the Permit Holders cannot argue surprise or prejudice when they were put on notice of the two immunity defenses at the very onset of litigation.

         Moreover, we take special note the State Lottery raised the issue in the Second Motion to Dismiss, which was filed in response to the Permit Holders' Amended Complaint. Rule 15(a) of the West Virginia Rules of Civil Procedure provides that "[a] party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders." Rule 12(b) of the West Virginia Rules of Civil Procedure then provides that

[e]very defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third- party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
* * *
(6) failure to state a claim upon which relief can be granted[.]

         Without doubt, the Amended Complaint required a responsive pleading, and nothing in the Rules of Civil Procedure prohibits a second 12(b)(6) motion to raise defenses in response to an amended pleading. Likewise, nothing in the Rules of Civil Procedure limits the scope of a second motion to dismiss to the allegations that were changed as between the original and amended complaints. For those reasons, the circuit court erred in determining that the State Lottery waived the right to assert sovereign and qualified immunity.

         B. Immunity

         Having determined that the State Lottery did not waive sovereign and qualified immunity, we turn to the three counts pled against the State Lottery - Regulatory Taking (Count I); Deprivation of Property Without Due Process (Count II); and Civil Conspiracy (Count VII). Because each of these causes of action requires a wholly distinct immunity analysis, we consider them separately.

         1. Count I - Regulatory Taking

         In Count I, the Permit Holders allege that the State Lottery had previously assured that the ICIS protocol would be functional for the full ten-year permit period. Further, the Permit Holders allege the State Lottery's requirement that all LVL terminals be converted to the SAS protocol at the cost of the Permit Holders amounted to a taking under both the West Virginia and United States Constitutions because the failure to convert to the SAS protocol would render their LVL terminals economically useless and would even subject them to criminal penalties for continued possession.[18]

         Article III section 9 of the West Virginia Constitution provides, in relevant part, that "[p]rivate property shall not be taken or damaged for public use, without just compensation[.]" Likewise, the Fifth Amendment to the United States Constitution, applied to the states through the Fourteenth Amendment provides that "private property [shall not] be taken for public use, without just compensation."[19] This provision is often referred to as "the takings clause." Courts have recognized that, though they are distinct situations and require different analyses, the takings clause may apply to the literal taking of property by occupation-for example, the state taking of privately owned land for construction of a state highway-as well as a regulatory taking, such as when the state passes a law or regulation that effectively renders private property economically useless, despite that it is still intact and "owned" by the private party.[20] Because the State Lottery has not physically removed the LVL terminals from the possession of the Permit Holders, but rather has put restrictions on their use by requiring that they conform to the SAS protocol, the Permit Holders allege a regulatory taking.

         It has been recognized with regard to real property that "a regulation which 'denies all economically beneficial or productive use of land' will require compensation under the Takings clause, . . . . [and, ] [w]here a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-back expectations, and the character of the government action."[21]

         Although the issue of a regulatory taking most commonly occurs most in the context of zoning regulations applicable to real property, here we are posed with an alleged regulatory taking of personal property by the state through its mandate that the LVL terminals conform to the SAS protocol. Discussing personal property we have observed, "[l]ong ago, this Court acknowledged that [the constitutional prohibition on takings without just compensation] 'protects private property in personalty as fully as in real estate.'"[22] This conclusion is consistent with the view held by the Supreme Court as to the broad definition of what constitutes an interest in property.[23]

         However, our case law has been somewhat inconsistent regarding whether the eminent domain procedure, and consequently inverse condemnation, may be utilized in the context of personal property. In G.M. McCrossin, we attempted to resolve the confusion:

Our cases are in conflict as to whether the eminent domain procedure set out in article 2, chapter 54 of the West Virginia Code may be utilized in seeking recovery for property interests other than realty. Compare State ex rel. Point Towing Co. v. McDonough, 150 W.Va. 724, 149 S.E.2d 302 (1966) (leaving open the possibility of eminent domain proceedings to determine the proper compensation for personalty) with [State ex rel. Firestone Tire & Rubber Co. v. Ritchie], 153 W.Va. 132');">153 W.Va. 132, 168 S.E.2d 287 [1969] (no procedure prescribed by general law for compensation for personal property.) We think that the statutory eminent domain procedure can, in the appropriate case, be utilized to set compensation for personal property.[24]

         Later, in Henson, this Court upheld, wholesale, the denial of a writ of mandamus seeking the state to compensate property owners for damage to both their real and personal property.[25] In Henson, this Court did not address the personal property issue and instead simply determined that the petitioners had failed to establish a set of facts to show there had been a taking.[26] As noted by Justice Starcher in his dissent, the holding was problematic:

The majority opinion also failed to discuss the lower court's holding that the [property owners] were, as a matter of law, not entitled to claim damages for personal property. The circuit court cited as authority for its ruling State ex rel. Firestone Tire and Rubber Co. v. Ritchie, 153 W.Va. 132');">153 W.Va. 132, 168 S.E.2d 287');">168 S.E.2d 287 (1969), a case that suggests that a party cannot recover for damages to personal property in an eminent domain proceeding. We expressly held in G.M. McCrossin, Inc. v. West Virginia Board of Regents, 177 W.Va. 539');">177 W.Va. 539, 355 S.E.2d 32 (1987), contrary to Firestone, supra, that "the statutory eminent domain procedure can, in the appropriate case, be utilized to set compensation for personal property." McCrossin, 177 W.Va. at 545, 355 S.E.2d at 38. The circuit court was, therefore, clearly wrong to state that there is no legal authority to entitle a party to recover for damage to personal property in an eminent domain proceeding.[27]

         To the extent that our holding in Henson requires clarification, we reiterate and herein hold that the statutory eminent domain procedure, and therefore inverse condemnation, can, in an appropriate case, be utilized to seek compensation for personal property. As we discussed in G.M. McCrossin:

Such an interpretation of [the eminent domain procedure] is consistent with the relevant portion of general rules for statutory construction set out in West Virginia Code § 2-2-10(r) which states that "[t]he word 'property' or 'estate' embraces both real and personal estate." More importantly, it is consistent with [Teter v. W.Va. Central and Pittsburgh Railway Co., 35 W.Va. 433');">35 W.Va. 433, 14 S.E. 146 (1891)] finding that personalty is protected by the Constitution and with the venerable but still valid principle that to deny the remedy is to deny the right. As this Court observed soon after the constitutional provision in question became part of the organic law of this state, "the Constitution denounces it as a wrong against the individual now, to damage his private property without just compensation, and for that wrong, he must have a remedy, although it is not pointed out in the Constitution, or by any statutory enactment thereunder." Johnson v. City of Parkersburg, 16 W.Va. 402 (1880).[28]

         Neither the West Virginia Constitution, the United States Constitution, nor our eminent domain statutes specify that eminent domain proceedings apply solely to real estate to the exclusion of personalty.[29] In fact, in light of our conclusion on the matter discussed in G.M. McCrossin, this Court invited the Legislature to "alter or add to the eminent domain procedure currently detailed in chapter 54 of the West Virginia Code so that compensation for property other than realty may be more efficiently determined."[30] The Legislature has declined to do so. Nevertheless, consistent with the United States Supreme Court's broad interpretation of "property" for eminent domain purposes and the leanings implicit in our precedent, we find that the procedures[31] outlined for eminent domain and inverse condemnation may be applied in this case where the Permit Holders seek just compensation for what they allege is a regulatory taking of their personal property.

         The State Lottery contends, however, that the Permit Holders pled their claim as an exception to the state's sovereign immunity through the purchase of insurance, [32] rather than petitioning the circuit court for a writ of mandamus to require the state to institute condemnation proceedings. Thus, the State Lottery argues that because the Permit Holders elected to plead their claims in this manner and then declined to limit the recovery on their takings claim to the insurance policy limits, sovereign immunity is applicable.

         Indeed, article VI, section 35 of the West Virginia Constitution provides that "[t]he State of West Virginia shall never be made a defendant in any court of law or equity[.]" The Permit Holders counter that this provision is inconsistent with the takings clause in Article III of the West Virginia Constitution, as well as application of the Supremacy Clause in light of the United States Constitution's matching provision.[33] We visited this constitutional issue in Stewart v. State Road Commission, explaining:

We recognize that the constitutional inhibition against taking private property for public use without just compensation (Art. II, sec. 9) is of equal dignity with the inhibition against suing the state. If necessary to maintain the rights of a citizen under the former, the two provisions would be construed together and the former treated as an exception to the latter. This has been done in some states. Our procedure, however, affords ample protection to one in the position of petitioner without resorting to that necessity.[34]

         In Stewart, we delineated the various remedies available to a landowner whose property had been taken without just compensation, including the availability of an injunction, seeking damages against the state road commissioner personally, or proceeding through mandamus to require the commissioner, personally, to institute condemnation proceedings.[35] Stewart recognized that, if in conflict, sovereign immunity would give way to a claim under the takings clause, but still found that the provisions were reconcilable by allowing the property owner to proceed against the official charged with performing condemnation in his personal capacity, since "in such a case a suit brought by the person entitled to the performance of the duty against the official charged with its performance is not a suit against the government."[36]

         However, since Stewart was decided in 1936, our immunity jurisprudence has changed dramatically.[37] More recently, we have recognized:

Our Constitution clearly contemplates that every person who is damaged in his person, property, or reputation shall have recourse to the courts to seek the redress of his injuries. The fact that the wrongdoer is an instrumentality of state government should not eviscerate these constitutional rights, inasmuch as the Bill of Rights contained in article III is designed to protect people from government. Moreover, one's constitutional right to access to the courts should not depend upon whether one seeks recourse for injuries attributable to a governmental agency by way of a cause of action sounding in tort, or by way of a mandamus to compel compensation for the damaging of private property.[38]

         Specific to claims involving a taking in which the state attempts to invoke sovereign immunity,

this Court has repeatedly held that the West Virginia Department of Highways, (formerly designated as The State Road Commission), an agency of the state, may be required by mandamus to institute eminent domain proceedings in order to ascertain just compensation for private land taken or damaged for state highway purposes.[39]

         Thus, the solution espoused in Stewart that the suit be brought against the commissioner in his or her personal capacity is no longer the law of this state. Rather, a property owner may proceed against a state agency by filing a complaint seeking a writ of mandamus to recover just compensation for real property taken or damaged for public purposes. As we have previously explained, "the appropriate remedy for a property owner whose property has been taken or damaged by [a state agency] when the department takes no action to compensate an injured property owner is to seek a writ of mandamus to compel the [state agency] to institute eminent domain proceedings."[40] In this sense, the route around sovereign immunity is clear in the context of real property owners, as they may seek a writ of mandamus requiring the state to institute eminent domain proceedings (i.e., inverse condemnation) without implicating sovereign immunity.[41] In light of our holding regarding the use of inverse condemnation in the context of personal property, we find these cases clarifying the procedures of inverse condemnation equally instructive in this case.

         However, by filing a civil action rather than a petition for a writ of mandamus, the State Lottery argues that the Permit Holders have seemingly pled under the insurance exception, and, consequently, the recovery sought must be capped at the insurance policy limits. The State Lottery fails to recognize that this Court, in 1998, abolished extraordinary writs to the circuit court under Rule 71B of the West Virginia Rules of Civil Procedure, and simplified the procedure by mirroring the "complaint" structure used in Rule 10(a):

The complaint shall contain a caption as provided in Rule 10(a) except that the plaintiff shall name as defendants the agencies, entities, or individuals of the State of West Virginia to which the relief shall be directed . . . . The complaint shall contain a short and plain statement of the authority for the writ demanded. A form indicating the simplified nature of the extraordinary writ practice as provided for by this provision is contained in the Appendix as Form 32.[42]

         Applied in the eminent domain context, we have explained that "the proper course of action for an aggrieved property owner [seeking just compensation for property taken or damaged by the state] . . . is to file a complaint in the circuit court seeking a writ of mandamus."[43] We hold, therefore, that pursuant to Rule 71B of the West Virginia Rules of Civil Procedure, the proper procedure for pursuing inverse condemnation is to file a ...


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