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State ex rel. West Virginia Department of Transportation v. Tucker

Supreme Court of West Virginia

February 27, 2019

STATE OF WEST VIRGINIA ex rel. WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Petitioner
v.
HONORABLE SUSAN B. TUCKER, Judge of the Circuit Court of Monongalia County; MILEGROUND DEVELOPMENT INDUSTRIES, INC.; FRONTIER WEST VIRGINIA, INC.; THE CITY OF MORGANTOWN, WEST VIRGINIA; INSITE MEDIACOM 2, LLC; FIRST COMMUNITY BANK; EAN HOLDINGS, LLC; WHOLESALE TIRE, INC.; BISON WV, LLC; and SHERIFF/TREASURER OF MONONGALIA COUNTY, Respondents

          Submitted: February 6, 2019

          ORIGINAL PROCEEDING IN PROHIBITION

          Michael J. Folio, Esq. Travis S. Haley, Esq. West Virginia Department of Transportation, Division of Highways Charleston, West Virginia Counsel for Petitioner

          Debra A. Bowers, Esq. Matthew D. Elshiaty, Esq. KAY CASTO & CHANEY PLLC Morgantown, West Virginia Counsel for Respondent Mileground Development Industries Inc.

          James V. Kelsh, Esq. Michael C. Cardi, Esq. BOWLES RICE LLP Morgantown, West Virginia Counsel for Respondent The City of Morgantown

          Stephen J. Golder, Esq. JENKINS FENSTERMAKER, PLLC Huntington, West Virginia Allison J. Farrell, Esq. JENKINS FENSTERMAKER, PLLC Clarksburg, West Virginia Counsel for Respondent EAN Holdings, LLC

          William J. O'Brien, Esq. Lauren K. Turner, Esq. Kylie D. Barnhart, Esq. STEPTOE & JOHNSON PLLC Bridgeport, West Virginia Counsel for Respondent Wholesale Tire, Inc.

         SYLLABUS BY THE COURT

         1. "A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va. Code 53-1-1." Syllabus Point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314');">160 W.Va. 314, 233 S.E.2d 425 (1977).

         2. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12');">199 W.Va. 12, 483 S.E.2d 12 (1996).

         3. "'The question what is a public use is always one of law.' Syllabus Point 2, in part, Hench v. Pritt, 62 W.Va. 270');">62 W.Va. 270, 57 S.E. 808 (1907)." Syllabus Point 2, Gomez v. Kanawha Cnty. Comm'n, 237 W.Va. 451');">237 W.Va. 451, 787 S.E.2d 904 (2016).

         4. "In a condemnation proceeding, the circuit court is charged with determining whether the applicant has a lawful right to take property for the purposes stated in the condemnation petition. The circuit court determines, as a matter of law, whether a property may lawfully be taken. The property may lawfully be taken if the applicant's expressed use of the property is, in fact, a public one, and the condemnation is not impelled by bad faith or arbitrary and capricious motives." Syllabus Point 1, Gomez v. Kanawha Cnty. Comm'n, 237 W.Va. 451');">237 W.Va. 451, 787 S.E.2d 904 (2016).

          OPINION

          WALKER, CHIEF JUSTICE

         The West Virginia Department of Transportation, Division of Highways (DOH) filed petitions in the Circuit Court of Monongalia County to condemn private property for use in expansion of a highly-trafficked road and moved for immediate right of entry and transfer of defeasible title. Although all parties agreed that the condemnation was for a public use, the circuit court held the motion in abeyance in lieu of denial and directed the DOH to go back to its engineers for additional consideration of perceived traffic safety issues and alternative plans so as to minimize the impact on local businesses. The circuit court then set the matter for an evidentiary hearing. The DOH filed a petition for a writ of prohibition arguing that the circuit court exceeded its authority. We agree and grant the DOH's writ of prohibition. The project is indisputably for a public ...


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