Roman Realty, LLC v. The City of Morgantown

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

Roman Realty, LLC,

Petitioner, June 11, 2024

released at 3:00 p.m.

C. CASEY FORBES, CLERK

v.) No. 22-587 (Monongalia County 20-C-109) SUPREME COURT OF APPEALS

OF WEST VIRGINIA

The City of Morgantown,

Respondent.

MEMORANDUM DECISION

Roman Realty, LLC (“Petitioner”), by its counsel, Kayla A. Cook, Michael C. Cardi, and

Jordan C. Maddy, appeals the Circuit Court of Monongalia County’s award of summary judgment

to The City of Morgantown (“Respondent”), appearing by its counsel, Jonathan J. Jacks and

Nathaniel D. Griffith. In its order granting summary judgment, the circuit court denied Petitioner’s

petition for writ of mandamus that sought to compel Respondent to institute eminent domain

proceedings to determine just compensation for damages to Petitioner’s property, located at 512

and 516 Grant Avenue in Morgantown, West Virginia (“Petitioner’s property”). In support of its

order, the circuit court concluded that Petitioner had another adequate remedy, precluding the

issuance of a writ of mandamus. On appeal, Petitioner argues that the circuit court erred in granting

summary judgment because (1) tort actions do not provide an adequate remedy, (2) Petitioner is

entitled to an impartial jury of twelve freeholders under the West Virginia Constitution, and (3)

attorney’s fees are generally unavailable in tort cases. After review, we find that the circuit court

did not err in granting summary judgment because Petitioner did not meet its burden to show a

lack of another adequate remedy.

This Court has considered the parties’ briefs, the record on appeal, and the oral argument

of the parties. Because there is no substantial question of law and no prejudicial error, a

memorandum decision affirming the circuit court is appropriate pursuant to Rule 21 of the West

Virginia Rules of Appellate Procedure.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner’s property fronts on Grant Avenue, in the Sunnyside neighborhood of

Morgantown, West Virginia. Above and behind Petitioner’s property is a fifteen-foot-wide alley,1

owned by Respondent. The alley runs parallel to Grant Avenue and was never developed by

Respondent to allow vehicular traffic. As a part of improvements to the area, Respondent

contracted to install a twelve-inch drainage pipe within the alley’s right of way. Respondent

engaged the Green River Group, LLC to complete the construction for this project. (“Green

River”).

1

The alley is referred to in the briefs as “Alley D” and “Model Alley.” The name of the

alley is insignificant, thus, we will simply call it “the alley” or “alley.”

1

In its verified petition for writ of mandamus to compel eminent domain proceedings,

Petitioner alleged that during project construction, eleven trees were removed from its property

and “approximately 1,000 square feet of Petitioner’s property was excavated and used as a dump

site.” Additionally, Petitioner stated that eight additional trees were heavily damaged by the

project. Finally, Petitioner averred that the slope of its property was greatly altered and surface

water increased as a result of Respondent’s activities, leading to “a massive issue of surface water”

on Petitioner’s property.

Respondent moved to dismiss the petition, which motion was denied by the circuit court.

Following a period of discovery, Respondent moved for summary judgment. Following briefing

and a hearing, the circuit court granted summary judgment to Respondent, finding that Petitioner

had another adequate remedy against Respondent in tort. Specifically, the circuit court found:

Not only does the case law support another adequate remedy,

it is confirmed by [Petitioner]’s pleadings. Here, [Respondent]’s

improvement project did not call for the use of [Petitioner]’s land.

Rather, [Respondent]’s contractor was to simply place a storm drain

line within an existing 15[-]foot parcel of [Respondent]’s property.

[Petitioner] alleges its property was taken and damaged by trespass

and/or negligence by [Respondent] and/or Green River. This

scenario is precisely on point with the cases holding a remedy exists

at common law. Existing case law holds a civil action is not only

adequate, but the proper and required course of action.

....

[I]n a civil action for damages, [Petitioner] can recover the cost of

repairing any alleged deficiencies – putting it in the same place as

prior to the alleged allegations. Conversely, [Petitioner] can recover

the value of the land if such repairs cannot be completed. This is

precisely the same remedy [Petitioner] is seeking through its writ of

mandamus – either an award of damages to the residual of the

property, or the value of the property allegedly taken.

Following the circuit court’s entry of its order granting summary judgment, Petitioner appealed to

this Court.

II. STANDARD OF REVIEW

As we are reviewing the circuit court’s grant of summary judgment, our firmly established

review in such cases is de novo: “A circuit court’s entry of summary judgment is reviewed de

novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Further, we have

consistently held that a party must establish three elements to prevail on a petition for writ of

mandamus: “A writ of mandamus will not issue unless three elements coexist - (1) a clear legal

right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing

which the petitioner seeks to compel; and (3) the absence of another adequate remedy.” Syl. Pt.

2

2, State ex rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969). Finally, the

burden to prove all three Kucera elements falls upon the Petitioner. State ex rel. Richey v. Hill,

216 W. Va. 155, 160, 603 S.E.2d 177, 182 (2004) (“As ‘the burden of proof as to all the elements

necessary to obtain mandamus is upon the party seeking the relief[,]’ 52 Am. Jur. 2d Mandamus §

3 at 271 (2000) (footnote omitted), a failure to meet any one of them is fatal.”).

With these factors in mind, we will now analyze the arguments raised in this appeal.

III. ANALYSIS

On appeal, Petitioner raises three assertions in support of its contention that the circuit court

erred in its grant of summary judgment and denial of its petition for writ of mandamus. These

three grounds are not meritorious. Petitioner first argues that tort actions do not provide an

adequate remedy for the alleged damages to its property. Next, Petitioner avers that in a tort action,

a jury would be comprised of six persons, rather than twelve freeholders, which deprives it of a

procedural protection. Finally, Petitioner argues that attorney’s fees are unavailable in tort cases

but are recoverable in a mandamus proceeding. After review, we agree with the circuit court that

Petitioner failed to meet its burden to establish the absence of another legal remedy, which is a

prerequisite to the issuance of a writ of mandamus.2

A. Absence of Another Adequate Remedy

Petitioner first argues that it cannot be properly compensated in a traditional tort action and

Respondent must be compelled to institute eminent domain proceedings because of the

constitutional requirement of just compensation. We disagree. The West Virginia Constitution

provides:

Private property shall not be taken or damaged for public

use, without just compensation; nor shall the same be taken by any

company, incorporated for the purposes of internal improvement,

until just compensation shall have been paid, or secured to be paid,

to the owner; and when private property shall be taken, or damaged

for public use, or for the use of such corporation, the compensation

to the owner shall be ascertained in such manner as may be

prescribed by general law: Provided, That when required by either

of the parties, such compensation shall be ascertained by an

impartial jury of twelve freeholders.

W. Va. Const. art. III, § 9. We agree that the plain language of our Constitution provides that

when property is taken or damaged for public use, just compensation must be paid to the property

owners and have stated:

2

Because the circuit court limits its analysis to the third Kucera factor, “absence of

another adequate remedy,” we do not examine the other two factors, namely a clear legal right and

a legal duty.

3

[T]he Constitution . . . now provides that private property shall not

be injured by public use without compensation. It is no longer an

injury without a wrong, and although no method is prescribed for

obtaining redress, or for ascertaining the damages prior to the injury

by general law, a suit in case is maintainable.

White v. City of Charleston, 98 W. Va. 143, 147, 126 S.E. 705, 706 (1925). The constitutional

requirement outlined in Article III, § nine provides that a landowner’s property shall not be taken

or damaged without “just compensation;” but it does not mention or require that such

compensation be in the form of eminent domain. Indeed, the relevant constitutional provision

expressly provides that such compensation shall be “ascertained in such manner as may be

prescribed by general law.” W. Va. Const. art. III, § 9. Clearly, a landowner’s rights of recovery

for damages to property through an available tort remedy protects a landowners’ important rights

as enshrined by Article III, § 9 of West Virginia’s Constitution. Thus, our Constitution does not

require an eminent domain proceeding be initiated to ascertain just compensation, merely that just

compensation must be paid:

Section 9, article 3 of the Constitution, which provides that

“Private property shall not be taken or damaged for public use,

without just compensation,” requires action on the part of the state,

its subdivisions or instrumentalities, to ascertain damages and

compensate owners of property for the taking thereof or damage

thereto, incident to any public improvement for which such property

may be appropriated.

Syl. Pt. 1, Hardy v. Simpson, 118 W. Va. 440, 190 S.E. 680 (1937), overruled on other grounds

by State v. Sanders, 128 W. Va. 321, 36 S.E.2d 397 (1945). Petitioner points us to numerous cases

it alleges support the proposition that a writ of mandamus must issue to compel eminent domain

proceedings for Petitioner to receive just compensation. However, those cases discuss the issue

when the State is a party.3 When the State is the party alleged to have taken or damaged property,

3

Petitioner directs us to two cases that it alleges require a writ of mandamus to issue

compelling a municipality to institute eminent domain proceedings. In Flowers v. City of

Morgantown, 166 W. Va. 92, 272 S.E.2d 663 (1980), the property owners sought the institution

of eminent domain proceedings to condemn certain property rights of “access, light, air and view.”

Id., 166 W. Va. at 93, 272 S.E.2d at 664. This Court determined that the circuit court’s order

granting a motion to dismiss that complaint was improper. Flowers is easily distinguishable from

this matter. The key issue before the Court in Flowers was not whether the landowner could

recover through a tort action, but whether the circuit court erred in determining, upon a motion to

dismiss, that the landowner had no right to just compensation for the deprivation of its “right to

access, light, air and view.” The Flowers Court reversed the circuit court’s dismissal of the action,

finding that “[a]s a general rule, the owner of land abutting on a public street is also in possession

of easements of light, air and view.” Id., 166 W. Va. at 94-95, 272 S.E.2d at 664-65. However,

we conclude that Flowers does not support the proposition that a writ of mandamus is required to

(continued . . .)

4

a writ of mandamus compelling an eminent domain proceeding is the only method by which an

aggrieved property owner can compel the State to provide just compensation. “[U]nder the

Constitution, suit cannot be maintained against the State because of the immunity of the State, and

that for the reason no other available remedy exists, mandamus will lie against a governmental

agency.” State ex rel. Wells v. City of Dunbar, 142 W. Va. 332, 335, 95 S.E.2d 457, 459 (1956).

While a mandamus action seeking to compel the State to file an eminent domain

proceeding is the only remedy available to a private landowner whose property is taken or damaged

by the State without an eminent domain proceeding, such remedy is not required under the specific

facts here, where the State’s sovereign immunity is not implicated and statutory immunities were

not alleged in the Respondent’s amended motion for summary judgment. Indeed, under the facts

of this case, the constitutional bar against maintaining a tort action against the State does not impact

Petitioner’s ability to bring a suit in tort against Respondent:

In an action of trespass on the case against a municipality to

recover alleged damages to real property caused by the wrongful

raising of the grade and paving of a street upon which the property

in question abuts it is error to refuse an instruction offered on behalf

of the defendant informing the jury that if it believes from the

evidence that the value of the property immediately after the change

of grade and paving, including all benefits derived therefrom, if any,

was more than its value immediately before the improvement was

begun, then its verdict should be for the defendant. An order of the

trial court setting aside a verdict because of that refusal will be

affirmed.

compel a political subdivision to institute eminent domain proceedings when another adequate

remedy is available in tort.

Petitioner also cites to Syllabus Point 6 of Stover v. Milam, 210 W. Va. 336, 557 S.E.2d

390 (2001), which provides:

Wherefore any thing done by a state or its delegated agent,

as a municipality, which substantially interferes with the beneficial

use of land, depriving the owner of lawful dominion over it or any

part of it, and not within the general police power of the state, is the

taking or damaging of private property without compensation

inhibited by the Constitution.

However, in Stover, the syllabus point was directed to the actions of the circuit court, which had

enjoined Mr. Stover from placing boundary markers on his property. “Based upon these principles,

we can reach no conclusion other than that Mr. Stover should be permitted to erect markers on his

property to denote the boundary lines of the right-of-way if he so chooses.” Id., 210 W. Va. at

344, 557 S.E.2d at 398. We find that Stover is neither instructive nor germane to the issues in this

appeal.

5

Syl., Doss v. City of Mullens, 133 W. Va. 351, 56 S.E.2d 97 (1949). The availability of another

adequate remedy when a municipality is alleged to have taken or damaged property is a key

distinction from cases that compel eminent domain proceedings against the State. Doss explains

that: “[i]f the State for public use damages property without taking, although it cannot be sued,

mandamus may require it to institute a condemnation proceeding in which the property owner may

establish and recover his damages. However, if a municipality damages private property it may

be sued[.]” Id., 133 W. Va. at 353, 56 S.E.2d at 98 (citations omitted). Doss is just one in a litany

of cases that have drawn this distinction. In State ex rel. Firestone Tire & Rubber Co. v. Ritchie,

153 W. Va. 132, 168 S.E.2d 287 (1969), we cited to nearly a century of legal precedent

highlighting that difference:

This principle is clearly stated in the syllabus of the Mahone case

wherein it is stated: ‘The state road commission of West Virginia is

a direct governmental agency of the state, and as such is not subject

to an action for tort.’ [Syl., Mahone v. State Road Commission et al.,

99 W. Va. 397, 129 S.E. 320 (1925)].

The difficulty encountered when the State is involved with

regard to private property under the provisions of Article III, Section

9 of the Constitution is not present where a private corporation or

municipal corporation having the right of eminent domain is

involved or an independent contractor doing work for the State in a

tortious manner is involved because the provisions in the

Constitution are self-executing in such cases where the parties have

the right of eminent domain and in these instances common law or

equitable actions will lie. Johnson v. City of Parkersburg, 16 W. Va.

402 [(1880)]; Mason v. Harper’s Ferry Bridge Co., 17 W. Va. 396

[(1880)]; Ward v. Ohio River R’d Co., 35 W. Va. 481, 14 S.E. 142

[(1891)]; Teter v. [W. Va.] Cent. & P. R’d Co., 35 W. Va. 433, 14

S.E. 146 [(1891)]; Thorne v. City of Clarksburg, 88 W. Va. 251, 106

S.E. 644 [(1921)]; Whitney v. Ralph Myers Contracting Corp., 146

W. Va. 130, 118 S.E.2d 622 [(1961)]; Perdue v. S. J. Groves and

Sons Company, 152 W. Va. 222, 161 S.E.2d 250 [(1968)].

Id., 153 W. Va. at 140-41, 168 S.E.2d at 291-92 (emphasis added).

After this Court’s decisions in Doss and Firestone, the Legislature adopted The

Governmental Tort Claims and Insurance Reform Act in 1986. See W. Va. Code § 29-12A-1-18

(“Tort Claims Act”). The purpose of the Tort Claims Act is to “limit the liability of political

subdivisions and provide immunity to political subdivisions in certain instances. . . .” W. Va. Code

§ 29-12A-1. However, during oral argument, counsel for Respondent represented to this Court

that “there is not a blanket immunity against the City of Morgantown,” apparently referencing the

statutory immunities contained in the Tort Claims Act. Because Respondent’s counsel plainly

stated there was no blanket immunity for Respondent, Respondent did not raise statutory immunity

in its amended summary judgment motion before the circuit court, and the circuit court did not

6

address statutory immunity in its order, the Tort Claims Act is not a bar to Petitioner’s ability to

receive just compensation through a tort action in this case.

Petitioner further maintains that the remedy available to it through a tort action is inferior

to those available through an eminent domain proceeding. However, the holding in Doss makes

clear that remedies available to a property owner in a tort action against a municipality are, in fact,

the same as those available from the State in a condemnation proceeding. In Doss, a case brought

under the tort action of trespass on the case, this Court expressly held:

We are, therefore, confronted at the outset with the question of

whether the same elements should control in arriving at damage to

real estate subjected to public use in actions of tort as in

condemnation. We are of the opinion that the same rule should

apply. We are of that opinion because if Chapter 28 of the Acts of

1933[4] were not applied to actions for the recovery of damages, it

would mean that legal proceedings for exactly the same

purpose, although brought under a different type of procedure,

would be governed by substantially different rules leading to

materially different results. If the State for public use damages

property without taking, although it cannot be sued, mandamus may

require it to institute a condemnation proceeding in which the

property owner may establish and recover his damages. However,

if a municipality damages private property it may be sued: We

cannot say that it was the purpose of the Legislature to discriminate

between municipalities and the State of West Virginia in identical

instances where either may be haled into court and damages

recovered, fixing their measure of damages on materially different

bases. To do so would be a departure from the principle of

uniformity.

Id. 133 W. Va. at 352-53, 56 S.E.2d at 98 (internal citations omitted). Although Petitioner may

not compel Respondent to initiate eminent domain proceedings in order for it to obtain any just

compensation to which it is entitled, our holding in Doss assures it the remedy in a tort action is

the same as the remedy in an eminent domain proceeding. Indeed, in granting summary judgment

in Respondent’s favor, the circuit court expressly granted Petitioner thirty days in which to amend

its complaint to assert tort claims. Accordingly, Petitioner did not meet its burden to demonstrate

a lack of another adequate remedy and entitlement to the requested writ.

4

We note that Chapter 28 of the Acts of 1933 is still enshrined in West Virginia Code §

54-2-9, which provides for commissioners to establish the amount of just compensation due a

landowner. Doss held that the remedy available in a tort action against a municipality is the same

as the remedy available in eminent domain, which, also includes the right to a commissioners’

hearing.

7

B. A Jury of Twelve Freeholders

Article III, Section 9 of West Virginia’s Constitution mandates that juries considering just

compensation consist of twelve freeholders, if demanded by either party. Petitioner argues that

any dispute in a tort action with Respondent would be resolved by a jury of six persons, depriving

it of the constitutionally mandated jury. We begin our analysis by noting that our Rules of Civil

Procedure contain a mechanism whereby a circuit court may increase the number of jurors seated

in a matter. See W. Va. R. C. P. 47 (b) (“Unless the court directs that a jury shall consist of a

greater number, a jury shall consist of six persons”).

Additionally, to ensure that the constitutional requirement of twelve freeholders is

followed, this Court has required a jury of twelve freeholders in cases where damage to real

property by a municipality was at issue in a tort action. In Thorne v. City of Clarksburg, 88 W.

Va. 251, 106 S.E. 644 (1921), the plaintiff brought an “action on the case” against the City of

Clarksburg, alleging that the City had lowered “the grade of the street in front of her property.”

Id., 88 W. Va. at 252, 106 S.E. at 645. Although the plaintiff demanded a jury of twelve freeholders

to resolve the dispute and maintained that demand through trial, the lower court denied the request

that the jury be comprised of freeholders and submitted the case to a jury, whose composition of

freeholders was unknown. In reversing the circuit court in Thorne, we crafted two syllabus points

that are germane to this action:

The last clause of section 9 of article III of the Constitution

of this state relating to the taking or damaging of private property

for public use, providing that when required by either of the parties

the compensation therefor shall be ascertained by an impartial jury

of twelve freeholders, properly construed, is so far self–executing as

to entitle them in a suit at common law for compensation for

property not taken but damaged, to have the damages assessed by

such impartial jury of twelve freeholders.

Where in a suit for compensation for private property taken

or damaged for public use either of the parties thereto has plainly

demanded and been denied the right to an impartial jury of twelve

freeholders, it will be presumed that the jury was not so composed

and that the party so demanding was deprived of a constitutional

right.

Syl. Pts. 1 & 3, Thorne.

Applying the holding in Thorne to the instant case, we find that Petitioner is entitled to a

jury of twelve freeholders to determine just compensation in a tort action against Respondent.

However, such right does not translate to a right to recovery through eminent domain proceedings.

As we stated above, the Constitution protects a landowner’s right to “just compensation” through

principles of general law. This does not afford a landowner the right to compel an eminent domain

proceeding in order to establish just compensation where the landowner’s ability to seek such just

8

compensation through a tort claim for damages provides an adequate remedy, where immunities

are not implicated.

C. Availability of Attorney’s Fees

Finally, Petitioner argues that by denying its petition for writ of mandamus the circuit court

deprived Petitioner an adequate remedy because it is foreclosed from recovering attorneys’ fees in

a general tort claim while such fees would be available if Respondent is compelled to institute an

eminent domain proceeding. This argument conflates a remedy in a cause of action with what is

essentially a penalty that is assessed because of the dilatory conduct of a party. We have held that,

“[c]osts and attorney’s fees may be awarded in mandamus proceedings involving public officials

because citizens should not have to resort to lawsuits to force government officials to perform their

legally prescribed nondiscretionary duties.” Syl. Pt. 1, State ex rel. W. Va. Highlands

Conservancy, Inc. v. W. Va. Div. of Env’t Prot., 193 W. Va. 650, 458 S.E.2d 88 (1995). However,

such awards are not automatic; they require a party to prevail in the mandamus action before an

award of attorney’s fees is proper:

Attorney’s fees may be awarded to a prevailing petitioner in

a mandamus action in two general contexts: (1) where a public

official has deliberately and knowingly refused to exercise a clear

legal duty, and (2) where a public official has failed to exercise a

clear legal duty, although the failure was not the result of a decision

to knowingly disregard a legal command.

Syl. Pt. 2, Id.

The potential award of attorney’s fees is not a “remedy” for the purpose of determining if

a writ should issue. Otherwise, every requested writ would arguably have to be granted because

of the general unavailability of attorney’s fees in a tort action. In a mandamus action, the award

of attorney’s fees serves as a penalty against a governmental entity for failing to do what it is

legally required to do. We have held that attorney’s fees may be awarded in cases where a

governmental entity has disregarded a non-discretionary duty and a citizen has been forced to bring

a mandamus action to compel the government to do its job. See id., 193 W. Va. at 653-54, 458

S.E.2d 91-2. Here, we found that Petitioner had another adequate remedy, thereby precluding a

finding that Respondent had a non-discretionary duty to institute an eminent domain proceeding.

Therefore, simply requiring that Petitioner seek any just compensation to which it believes it is

due through a tort action rather than compelling Respondent to initiate an eminent domain

proceeding, even where Petitioner may not be able to recover attorney’s fees, does not deprive

Petitioner of an adequate remedy under the law.

Accordingly, Petitioner did not meet its burden to establish it is entitled to a writ of

mandamus compelling Respondent to institute eminent domain proceedings.

9

IV. CONCLUSION

For the reasons set forth herein, because Petitioner failed to meet its burden to establish all

three Kucera factors, the circuit court’s order granting summary judgment to Respondent is

affirmed.

Affirmed.

ISSUED: June 11, 2024

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn

DISSENTING:

Justice Elizabeth D. Walker

Justice John A. Hutchison

Walker, J., dissenting, joined by Hutchison, J.:

In this case, Roman Realty petitioned to compel the City of Morgantown to institute

condemnation proceedings. The circuit court denied the petition for a writ of mandamus on the

grounds that Roman Realty had another adequate remedy at law—a civil action against the City.

The majority affirms that decision.

The majority’s decision gives a seal of approval to a slipshod “sue me if you don’t like it”

approach that offends the careful balance the Legislature has struck between the right of a

municipality to take the property of private citizens and the fundamental rights of property owners.

The Legislature prescribed the process for an appropriate exercise of the power of eminent domain

in article 2, chapter 54 of the West Virginia Code,1 and this Court crafted inverse condemnation to

1

Article III, Section 9 of the West Virginia Constitution specifies that “[p]rivate property

shall not be taken or damaged for public use, without just compensation.” In order to balance the

“societal interest in efficiently securing public infrastructure” with the “constitutional preeminence

afforded private property rights through the mandate of just compensation,” the Legislature

codified a comprehensive statutory framework within chapter 54 of the West Virginia Code to

ascertain just compensation. See State ex rel. W. Virginia Dep't of Transportation, Div. of

Highways v. Burnside, 237 W. Va. 655, 659, 790 S.E.2d 265, 269 (2016).

10

enable property owners to access the protections afforded by that process when government

entities fail to properly abide by its framework.2

In light of the Governmental Tort Claims Act and other practical considerations that may

preclude relief in tort, I take issue with refusing Roman Realty relief in mandamus and inverse

condemnation, particularly when the coffers of the municipality are, or should be, open for the

taking when it refuses to don its eminent domain hat. Because I am concerned that the majority

may be read to foreclose aggrieved landowners from pursuing inverse condemnation against

municipalities in favor of tort actions, which as explained below are an inadequate alternative

mechanism for accessing relief, I respectfully dissent.

The majority’s determination that Roman Realty had another adequate remedy at law

hinges on Doss v. City of Mullens,3 a 1949 case, and on the supposed availability of remedies

against municipalities other than inverse condemnation and the procedures in article 2, chapter 54.

The majority then reasons that civil suit is an adequate remedy at law because the same remedies

and rules are available in tort as in condemnation actions. Yes, Doss v. City of Mullens may be

read to apply the same rules and damages then available in a Chapter 54 proceeding4 to civil suits

against municipalities, and so to provide the procedural protections available in mandamus to tort

actions.5 But I question Doss’s salience in view of the enactment of the Governmental Tort Claims

and Insurance Reform Act in 1986.6

The Tort Claims Act provides statutory immunity to political subdivisions. Under the Act,

a political subdivision is generally not liable in damages in a civil action “for injury, death, or loss

to persons or property allegedly caused by any

2

See W. Va. Dep't of Trans., Div. of Highways v. Pifer, 242 W. Va. 431, 443, 836 S.E.2d

398, 410 (2019) (“Inverse condemnation is a shorthand description for a landowner suit to recover

just compensation for a governmental taking of his or her property without the benefit of

condemnation proceedings.”); Syl. Pt. 3, W. Va. Lottery v. A-1 Amusement, Inc., 240 W. Va. 89,

807 S.E.2d 760 (2017) (“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.”).

3

Doss v. City of Mullens, 133 W. Va. 351, 56 S.E.2d 97 (1949).

4

See W. Va. Code § 54-2-9 (1933).

5

Doss, 133 W. Va. at 353, 56 S.E.2d at 98.

6

The majority states that it will not venture into immunities law because the City of

Morgantown did not raise an immunity defense. But the majority sets up a straw man simply to

knock it down because the City has no immunity defense to a mandamus action. See W. Va. Code

§ 29-12A-4(b)(1) (Tort Claims Act does “not restrict the availability of mandamus, injunction,

prohibition, and other extraordinary remedies”).

11

act or omission of the political subdivision.”1 The Act carves out five specific situations

where political subdivisions are liable for “injury, death, or loss to persons or property”: negligent

operation of a vehicle, negligent performance of acts performed by employees acting within the

scope of employment, negligent failure to keep public roads in good repair, negligence of

employees in some governmental buildings, and situations where liability is expressly imposed by

a provision of this code.2

Doss predates the Tort Claims Act by forty years. By declining to address the Act’s effect

on Doss, the majority assumes that the causes of action against a municipality that were available

in 1949 are available today—an assumption of epic proportions considering that, under the Tort

Claims Act, a political subdivision is generally not liable in damages in a civil action “for injury,

death, or loss to for injury, death, or loss to persons or property allegedly caused by any act or

omission of the political subdivision.”3

Setting the Tort Claims Act to the side, the majority leaves yet more questions on the table.

The majority does not explore how Roman Realty might achieve the ends provided by

condemnation proceedings, and instead assumes that because tort actions exist, generally, relief

may be had. What does the cause of action in tort look like? Who bears the burden of proof? Is

it shifted to the landowner? Must one meet the elements of the tort alleged, or must it simply show

that the City has damaged its property or damaged it to the point that it constitutes a taking? Does

title transfer to the City as though through eminent domain? Those questions, critical to the

conclusion that another adequate remedy exists in tort, are unexplored by the majority decision.

The majority fails to identify or address the viability of prospective causes of action

available to Roman Realty if it is precluded from pursuing inverse condemnation proceedings.

Problematically, in so doing, determination of whether an adequate remedy exists—the vital

consideration for issuing mandamus relief in this case—is deferred, and the mechanisms of that

remedy are avoided. It is plain that an action under trespass is inoperable as a possible cause of

action for Roman Realty, because eminent domain as a doctrine generally rests on the premise that

the governing body has a right to the private property for the public good.4 One cannot trespass,

as a matter of law, if one has the right to be there. If the majority is read to permit the landowner

to proceed in tort against the City as an adequate alternative to proceeding through inverse

condemnation, it must force the City to abdicate its eminent-domain-derived authority to be on the

property.

Presumably, the majority intends that landowners could pursue tort under trespass theories,

apparently with the same protections available in condemnation proceedings. But it is clearly

1

W. Va. Code § 29-12A-4(b)(1).

2

W. Va. Code § 29-12A-4 (c)(1)-(5).

3

W. Va. Code § 29-12A-4(b)(1).

4

See W. Va. Code § 54-2-1.

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inconsistent to apply the eminent domain statutory process premised on the City’s lawful

presence in the context of a tort action that, definitionally requires proof that the City does not

have a right

to be on the property as a matter of law. The City is either on a landowner’s property for

public use under color of law, or it is a trespasser – it cannot be both; the City cannot defend itself

with the right of eminent domain in tort whilst declining to observe the statutory process outlined

to avoid abuse of that power.

And as for potential causes of action rooted in the third-party contractor’s negligence, none

of these claims can be imputed to the City under the Tort Claims Act, which exposes municipalities

to liability only for the negligent acts of its employees and specifically precludes liability for

independent contractors.1 When read in conjunction with the eminent domain statutes, the Act

permits a municipality to lawfully access and take land for its own use under its power of eminent

domain and then hide behind third-party contractors to avoid paying just compensation. Those

actions against third-party contractors, while perhaps viable, are not subject to the eminent domain

protections because they are not claims against a governing body with the authority to invoke

eminent domain under Chapter 54. In short, the majority has directed landowners harmed by the

City’s power of eminent domain to pursue a civil action in tort, but I cannot identify a single cause

of action under the majority’s framework that practically empowers Roman Realty to access the

protections available in Chapter 54 of our code without simultaneously failing to comply with the

code’s mandate that the governing body have a right to take or damage the property in the first

instance or falling into the immunity pitfalls inherently brought forth under the Tort Claims Act.

Unlike the majority, I see little sense in complicating what is an otherwise streamlined

process. Had the City appropriately exercised its right to eminent domain, the path to just

compensation would be a clear one. But because the City acted first and asked permission later,

the landowner’s path is a different, more treacherous one through tort. The pitfalls of forcing the

landowner down that path have not been adequately addressed by the parties or by the majority.

So, I respectfully dissent insofar as this decision might be read to foreclose the use of inverse

condemnation in every case against a municipality for availability of an alternative, adequate

remedy in tort.

I am authorized to state that Justice Hutchison joins me in this dissent.

1

See W. Va. Code § 29-12A-3(a) (“‘Employee’ does not include an independent

contractor of a political subdivision.”)

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