Nunley v. Salyers

508 S.E.2d 368, 203 W. Va. 431, 1998 W. Va. LEXIS 142
CourtWest Virginia Supreme Court
DecidedJuly 16, 1998
DocketNo. 24958
StatusPublished
Cited by1 cases

This text of 508 S.E.2d 368 (Nunley v. Salyers) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nunley v. Salyers, 508 S.E.2d 368, 203 W. Va. 431, 1998 W. Va. LEXIS 142 (W. Va. 1998).

Opinion

PER CURIAM 1:

This case is before the Court upon the petition of Clinton Salyers and Mountaineer [434]*434Gas Co., defendants in a suit in the Circuit Court of Clay County. In 1995, plaintiff, Faye Nunley, had commenced a civil suit in the Circuit Court of Clay County seeking compensation from defendants for property damage resulting from slippage caused by the improper installation of a natural gas pipeline. This action resulted in a verdict for the plaintiff. While appeal of the verdict in this action was pending, plaintiff brought a second suit seeking additional damages for damage occurring to her property during the pendency of the appeal, which the circuit court desired to consolidate with the fust action. While the second case was being developed for trial, judgment was then satisfied in the first case. After being persuaded that the second suit did not allege an independent cause of action, the circuit court nevertheless ruled that a hearing in the first suit on post-judgement damages was needed. In recognition of the fact that there was no procedural or statutory authority for such a hearing, the circuit court proposed the submission of three certified questions, upon which it had ruled, for this Court’s review. For the reasons enumerated below, we answer each of the three certified questions in the negative.

I.

FACTUAL AND PROCEDURAL HISTORY

Faye D. Nunley (Nunley) is the owner of a tract of property along a bank of the Elk River in Procious, Clay County, West Virginia. In August 1993, Mountaineer Gas Co. (Mountaineer Gas) entered into a written “Dig and Backfill Agreement” to extend an existing gas line to various properties lying along the Elk River. Nunley’s neighbors had requested gas service from Mountaineer Gas and this request was the impetus behind Mountaineer Gas entering into the agreement. Nunley’s neighbors, organized under the leadership of Clinton Salyers, then extended an underground gas pipeline through Nunley’s property pursuant to a right-of-way granted by Nunley to Mountaineer Gas. This line ran parallel to Elk River at distances between ten and forty feet from the bank. Upon completion, Mountaineer Gas accepted ownership of the pipeline.

In early 1995, high water levels, followed by a precipitous drop in water levels initiated by the U.S. Army Corps of Engineers, damaged the river embankment on Nunley’s property. This was compounded by inadequate compaction of the soil by the pipeline installation crew, as water was thus able to enter the ditchline and weaken the bank, causing slippage.

On October 8, 1995, Nunley filed a complaint in the Circuit Court of Clay County alleging both contract and property damages for breach of the right-of-way agreement and of the Dig and Backfill Agreement and tort damages for intentional infliction of emotional distress and outrage. On December 14, 1995, following a jury trial, Nunley was awarded a verdict for her damages consisting of fifty thousand dollars in repair costs, thirty thousand dollars in annoyance and inconvenience costs, and pre-judgment interest. Subsequently, on March 15,1996, a judgment order was entered by the circuit court. On March 26, 1996, Mountaineer Gas filed a motion for judgment notwithstanding the verdict, for a new trial or for alteration or amendment of the judgment, which was denied August 21, 1996. However, that same August 21, the circuit court granted the motion of Mountaineer Gas to stay enforcement of the judgment.

Subsequently, on December 17, 1996, Mountaineer Gas filed a petition for appeal asserting error by the circuit court in the admission of certain expert testimony and the award of pre-judgment interest. This Court, on March 12,1997, denied this appeal petition, and on March 31,1997, Mountaineer Gas paid Nunley ninety-nine thousand three hundred nineteen dollars and forty cents in satisfaction of the judgment. This included more than eleven thousand dollars of post-judgment interest. By Agreed Order entered June 19, 1997, the circuit court released the judgment lien.

On October 7, 1996, during the pendency of the appeal of the first action, Nunley had filed a second complaint CNunley II) against Mountaineer Gas in the'Circuit Court of Clay County, this time asking relief for property [435]*435damages which occurred to her property during the pendency of the appeal Mountaineer Gas had sought from the judgment in Nun-ley I. On April 28, 1997, circuit court heard oral argument on a motion to dismiss, then on May 21, 1997, ordered Nunley to provide Mountaineer Gas, by May 27, 1997, with an itemized list of damages to the property which did not exist and which were not foreseeable at the time of the verdict of December 14,1995.

Nunley submitted a damage estimate, known as the Lyle Report, after the motion deadline, containing only increased construction costs for riverbank displacement occurring during the pendency of the appeal of Mountaineer Gas from the first verdict. On June 19, 1997, the circuit court held a hearing on a renewed motion to dismiss by Mountaineer Gas at which it found that since Nunley had not complied with the disclosure deadline and had made no repairs to the property since March 31, 1997, when the judgment from Nunley I had been satisfied, Nunley’s additional damages were limited to those increased construction costs claimed in the Lyle Report.

By a motion filed on June 24,1997, Nunley sought reconsideration of the order limiting her claimed damages. On July 18, 1997, the circuit court heard argument on this motion and upon the renewed motion to dismiss by Mountaineer Gas. The circuit court determined that Nunley had failed to assert an independent cause of action in Nunley II, but was entitled to a hearing on the value of post-judgment damages in Nunley I. The circuit court made this ruling even though Nunley was not, by her filing of Nunley II, attempting to alter or amend the judgment in Nunley I and despite the fact that the judgment in Nunley I had been released.

In recognition of the fact that no authority existed for this proposed hearing, three questions were certified to this Court on September 23, 1997, by the circuit court, which are as follows:

1.For the purpose of hearing a claim for post-judgment damages in a new civil action consolidated with the original civil action after it is ended, does Rule 42(a) of the West Virginia Rules of Civil Procedure grant the court discretionary authority to consolidate a pending civil action with a civil action in which a final judgment had already been entered?
2. Based upon the allegations in Nunley I, has Nunley alleged an independent cause of action upon which she may be entitled to maintain a subsequent action for damages, following a jury verdict in Nunley I ?
3. Is Nunley entitled to a post-judgment hearing on damages in Nunley I, consolidated with Nunley II, for any subsequent damage to her property following the verdict returned on December 14, 1995, in Nunley I and prior to payment of the judgment on March 31, 1997? The circuit court held in the affirmative.

The circuit court answered questions one and three in the affirmative and question two in the negative. For the reasons enumerated below, this Court agrees with the circuit court’s answer to Certified Question Two, but disagrees with the answers of the circuit court to Certified Questions One and Three.

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508 S.E.2d 368, 203 W. Va. 431, 1998 W. Va. LEXIS 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nunley-v-salyers-wva-1998.