Rebecca C. Wildman Bailey, Gary D. Hennis, Russell I. Hennis, and Franclena R. Hennis, Defendants Below, Petitioners
JB Exploration I, LLC, and Nancy Fout, Plaintiffs Below, Respondents
Rebecca C. Wildman Bailey, Gary D. Hennis, Russell I. Hennis,
and Franclena R. Harris, by counsel William E. Ford III and
Lisa Furbee Ford, appeal the order of the Circuit Court of
Tyler County, entered on November 2, 2016, that granted
respondents' motion for the partial allotment and residue
sale of unleased oil and gas. Respondents JB Exploration I,
LLC ("JB Exploration") and Nancy Fout ("Ms.
Fout") appear by counsel Thomas J. Gillooly and William
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 briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Fout and JB Exploration instituted this action with a
complaint to quiet title and make allotment concerning the
oil and gas (of which Ms. Fout and nearly 100 named
defendants, including petitioners, were believed to own
separate interests) underlying a 12.7-acre land tract.
Respondent JB Exploration was the lessee of 69.651261% of the
oil and gas, but was unsuccessful in its attempt to lease the
remainder. Ms. Fout, a lessor, owns the largest undivided
interest in the oil and gas.
Fout and JB Exploration filed a motion for partial allotment
and residue sale of the unleased oil and gas. Petitioners
opposed the motion, asserting their belief, based on JB
Exploration's dealings with Petitioner Bailey in prior,
unrelated partition lawsuits, that JB Exploration has
"unclean hands" in this matter. The circuit court
appointed a guardian ad litem to protect the interests of
unknown owners, and conducted a hearing on the motion for
partial allotment and residue sale. At the hearing,
petitioners requested discovery to explore the allegation
that JB Exploration dealt unfairly with owners of unleased
interests. The court noted that petitioners had already
served discovery, which was the subject of a motion for a
protective order on the ground that the discovery requests
were unrelated to the instant partition sale.
circuit court entered an order granting the motion for
partial allotment and residue sale on November 2, 2016. The
court ordered a sale, at public auction, of the interests
that had not been leased to JB Exploration, requiring a
minimum bid of $5, 000 per net acre. The auction was
conducted in December of 2017. By that time 18.935438% (or
2.404 net acres) remained unleased. Jay-Bee Royalty, LLC
successfully bid on the interests, at $5, 000 per acre, and
the circuit court confirmed the sale by order entered on
January 5, 2017.
appeal, petitioners assert three assignments of error. They
argue, first, that the circuit court misapplied West Virginia
Code Chapter 37, Article 4 by allowing a mineral lessor to
compel partition, ordering a "partial" allotment
and sale, forcing a sale without the appropriate notice to
all owners, and requiring "no evidence" to support
the action. Petitioners argue, second, that the circuit court
erred in granting summary judgment after denying their motion
for discovery. They argue, third, that the circuit court
effectively permitted the "taking" of private
property without due process of law in violation of the state
and federal constitutions. Insofar as petitioners challenge
the circuit court's rulings concerning application of law
regarding partition, we previously have held that
"[w]here 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." Syl. pt. 1, Chrystal R.M. v. Charlie
A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
Accord Syl. pt. 1, Appalachian Power Co. v.
State Tax Dep't of W.Va., 195 W.Va. 573, 466 S.E.2d
424 (1995) ("Interpreting a statute or an administrative
rule or regulation presents a purely legal question subject
to de novo review.").
begin with petitioners' first assignment of error, in
which they argue that the circuit court's order approving
partial allotment and residue sale violated statutory law. We
agree with respondents that Ms. Fout is entitled to compel
partition under West Virginia Code § 37-4-1 and that
petitioners, having failed to challenge her standing below,
may not do so now. Our general rule is that nonjurisdictional
questions not raised at the circuit court level, but raised
for the first time on appeal, will not be considered.
Whitlow v. Bd. of Educ. of Kanawha Cty., 190 W.Va.
223, 226, 438 S.E.2d 15, 18 (1993). With regard to the second
point that petitioners offer on this assignment of error
(that the statute does not provide for "partial"
allotment and sale), we note that the circuit court based its
order on West Virginia Code § 37-4-3, which specifically
provides, in relevant part, for the "allotment of part
and sale of the residue" if other interested persons are
not prejudiced. The circuit court concluded there was no
prejudice to the parties, and petitioners have offered no
evidence to the contrary. The circuit court thus did not err
in approving a partial allotment and residue sale.
remaining points in support of the first assignment of
error-that the circuit court forced a sale without the
appropriate notice to all owners and that it granted the
motion for partial allotment and sale of the residue without
evidence-intersects with the second assignment of error,
wherein petitioners argue that the circuit court erred in
granting summary judgment after denying petitioners'
motion for discovery. These points are based on
petitioners' assertions that JB Exploration agents
affirmed that they notified all interested persons of its
intent to seek partition, though they had not, in fact, done
Petitioners' assertions, in turn, are based on their
stated belief that JB Exploration acted with "unclean
hands" in prior partition actions, and that JB
Exploration agents stated that JB Exploration served its
complaint on parties at addresses "if known."
However, upon hearing from the guardian ad litem and upon
reviewing the affidavits of JB Exploration agents, the
circuit court found that respondent made "good faith
efforts . . . to ascertain the ownership of the oil and gas
interests which are the subject of this action" and
further found "that the partial allotment and residue
sale of the minerals at issue will not prejudice any or all
unknown, infant, un-locatable and/or legally disabled
[d]efendants." Petitioners have offered no evidence
countering the circuit court's detailed finding.
Furthermore, no evidence that petitioners may have developed
regarding JB Exploration's conduct in other, unrelated
cases would overcome the specific findings that the circuit
court made with regard to the case now before us. We
therefore find no error.
we reach petitioners' third assignment of error, wherein
they argue that the circuit court's order amounts to an
unconstitutional "taking" of property. Petitioners
argue that this case is analogous to an eminent domain
proceeding. It is not. "Eminent domain is the power of
the State to take or damage private property for a public
purpose upon payment of just compensation. The right of the
State to take private property for public purposes 'is an
inherent attribute of sovereignty, irrespective of any
constitutional or statutory provision.'" Gomez
v. Kanawha Cty. Comm'n, 237 W.Va. 451, 459, 787
S.E.2d 904, 912 (2016). What is now before us, on the other
hand, is a statutory partition action. Inasmuch as
petitioners offer no authority that a constitutional
violation occurs when non-governmental parties seek allotment
and sale, and notice is provided, and where adequate
compensation is made, we find no error.
foregoing reasons, we affirm.
CONCURRED IN BY: Chief Allen H. Loughry II Justice Margaret
L. Workman Justice Menis E. Ketchum Justice Elizabeth D.
DISSENTING: Justice ...