West Virginia Dept. of Transportation v. Margaret Z. Newton

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2015 Term
FILED
_____________ May 13, 2015
released at 3:00 p.m.
No. 14-0428 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_____________ OF WEST VIRGINIA

WEST VIRGINIA DEPARTMENT OF TRANSPORTATION,

DIVISION OF HIGHWAYS AND PAUL A. MATTOX, JR.,

SECRETARY/COMMISSIONER OF HIGHWAYS,

Petitioners Below, Petitioners

V.

MARGARET Z. NEWTON,
Respondent Below, Respondent

Appeal from the Circuit Court of Hardy County

Honorable Charles E. Parsons, Judge

Civil Action No. 11-C-30

AFFIRMED

Submitted: April 22, 2015

Filed: May 13, 2015

Clarence E. Martin, III J. David Judy, III
Susan R. Snowden Judy & Judy
Martin & Seibert, L.C. Moorefield, West Virginia
Martinsburg, West Virginia Attorney for Respondent
Attorneys for Petitioners

JUSTICE DAVIS delivered the Opinion of the Court.

JUSTICE KETCHUM concurs and reserves the right to file a concurring opinion.
 SYLLABUS BY THE COURT

1. Rule 59(f) of the West Virginia Rules of Civil Procedure does not

preclude a party from appealing definitive pretrial rulings of a trial court that are in the

record, even though the party failed to file a post-trial motion for a new trial.

2. “In eminent domain proceedings, the date of take for the purpose of

determining the fair market value of property for the fixing of compensation to be made to

the condemnee is the date on which the property is lawfully taken by the commencement of

appropriate legal proceedings pursuant to W. Va. Code, 54-2-14a, as amended.” Syllabus

point 1, West Virginia Department of Highways v. Roda, 177 W. Va. 383, 352 S.E.2d 134

(1986).

3. “When the contractor for the Department of Highways took the

landowners’ property prior to the institution of lawful condemnation proceedings, the trial

judge did not err in refusing to allow the introduction of evidence as to the value of such

property on a date prior to the institution of such proceedings.” Syllabus point 2, West

Virginia Department of Highways v. Roda, 177 W. Va. 383, 352 S.E.2d 134 (1986).

4. “When a condemnor had prior knowledge that its contractor was selling

i
a condemnee’s coal which had been severed from the land before the institution of lawful

condemnation proceedings, the fair market value of the condemnee’s coal, removed before

the lawful date of take, is the price for which the coal could be sold, ready for loading, by a

person desirous of selling to a person wishing to buy, both freely exercising prudence and

intelligent judgment as to its value, without consideration of the mining, production,

excavation and marketing costs.” Syllabus point 3, West Virginia Department of Highways

v. Roda, 177 W. Va. 383, 352 S.E.2d 134 (1986).

5. A party’s failure to file a post-verdict motion for judgment as a matter

of law under Rule 50(b) of the West Virginia Rules of Civil Procedure precludes this Court

from reviewing an insufficiency of the evidence claim.

ii
Davis, Justice:

This is an eminent domain appeal that was brought by the Petitioners, West

Virginia Department of Transportation, Division of Highways and Paul A. Mattox, Jr.,

Secretary/Commissioner of Highways (collectively “DOH”), from an adverse judgment in

the Circuit Court of Hardy County. In seeking a new trial, DOH has set out nine assignments

of error. The Respondent, Margaret Z. Newton (“Ms. Newton”), asks this Court to affirm

the judgment below.1 Upon our review of the parties’ briefs and oral arguments, the

appendix records designated for our consideration, and the pertinent authorities, we affirm.

I.

FACTUAL AND PROCEDURAL HISTORY

The record in the case shows that on June 4, 1980, Ms. Newton sold

approximately 37 acres of land, situate in Hardy County, to James S. Parsons.2 The property

deed reserved all mineral rights under the land to Ms. Newton. As a result, Mr. Parsons

owned the surface, and Ms. Newton owned the minerals. In 2003, DOH began testing soil

on parts of the property purchased by Mr. Parsons. The soil testing was done as part of

DOH’s preparation for constructing a portion of the Corridor H highway through Mr.

1
Ms. Newton also filed a cross-appeal in which she seeks attorney’s fees for
the proceeding below.
2
The land was owned and sold by Ms. Newton and her husband, Paul V.
Williams. However, Mr. Williams is now deceased; therefore, no reference will be made to
him.

1

Parsons’ land. The soil tests revealed significant deposits of limestone under Mr. Parsons’

land. By deed dated October 7, 2004, DOH acquired a right-of-way from Mr. Parsons, that

involved access to approximately 6.7 acres of his land, in exchange for $33,500.00.

DOH began construction of the highway through Mr. Parsons’ land during the

period 2006 through 2009. In order to build the highway through Mr. Parsons’ land, DOH

had to excavate approximately 236,187 tons of limestone from the property. DOH did not

contact Ms. Newton, the owner of the limestone, even though DOH appears to have used

much of the limestone in building the highway. In May 2010, Ms. Newton filed a mandamus

action against DOH seeking to force DOH to institute a condemnation proceeding for the

limestone removed from her mineral reservation in the land.3 An agreed order was entered

in March 2011, whereby DOH was required to institute a condemnation proceeding against

the limestone interests of Ms. Newton.4

After the agreed order was entered, DOH filed the instant condemnation action

seeking a determination of whether Ms. Newton was entitled to compensation for removal

of the limestone. After a period of discovery, the case was submitted to a condemnation

3
It appears that additional land owners joined the mandamus proceeding against
DOH.
4
Ms. Newton has indicated that a claim for attorney’s fees in the mandamus
proceeding is still pending in the circuit court.

2

commission on September 20, 2013, as allowed by W. Va. Code § 54-2-5 (1963) (Repl. Vol.

2008). The condemnation commission returned a verdict favorable to DOH. Thereafter, Ms.

Newton rejected the decision of the condemnation commission and demanded a jury trial as

allowed by W. Va. Code § 54-2-10 (1967) (Repl. Vol. 2008).

The case proceeded to trial on April 7, 2014, with a twelve-person jury as

required by law. See W. Va. Const. art. 3, § 9. It appears that a special verdict form was

submitted to the jury. The special verdict form allowed the jury to determine the amount of

limestone excavated and the amount of limestone alienated or remaining on the property; the

jury also determined a separate cost per ton for the excavated limestone and the alienated

limestone. Based upon the jury’s factual findings, the trial court entered an order of

judgment on April 16, 2014, that awarded Ms. Newton $941,304.53. This award was made

after the trial judge offset the money DOH paid Mr. Parsons for the surface right-of-way.

DOH did not file a post-trial motion for new trial or judgment as a matter of law. DOH filed

the instant appeal directly from the trial court’s order of judgment.

3

 II.

STANDARD OF REVIEW

DOH has set out nine assignments of error. Resolving the issues presented in

this case requires the application of specific review standards. Consequently, we will not set

out any general standard of review. Instead, we will address the standard of review that is

specific for each issue.

III.

DISCUSSION

On appeal to this Court, DOH has asserted nine assignments of error. We

separately will consider each issue.

A. DOH’s Failure to File Post-Trial Motions

Before we address DOH’s assignments of error, we must first resolve Ms.

Newton’s contention that we cannot reach the merits of the appeal because DOH failed to

file a post-trial motion for a new trial. According to Ms. Newton, Rule 59(f) of the West

Virginia Rules of Civil Procedure precludes consideration of an appeal if a motion for new

trial is not filed.5 DOH contends that the post-trial requirements of Rule 59(f) apply only to

issues occurring during the actual trial, and that eight of the issues that have been raised in

5
Ms. Newton initially raised this issue in an attempt to dismiss DOH’s appeal
before DOH filed its brief on the merits. This Court summarily denied the motion to dismiss.

4

its appeal involve pretrial rulings. Consequently, DOH argues, Rule 59(f) has no application.

Resolving this matter requires this Court to examine the text of Rule 59(f). We apply a de

novo standard of review of an issue involving the application of the rules of civil procedure.

See Syl. pt. 4, Keesecker v. Bird, 200 W. Va. 667, 490 S.E.2d 754 (1997) (“An interpretation

of the West Virginia Rules of Civil Procedure presents a question of law subject to a de novo

review.”).6

The relevant text of Rule 59(f) states the following:

If a party fails to make a timely motion for a new trial,
after a trial by jury in which judgment as a matter of law has not
been rendered by the court, the party is deemed to have waived
all errors occurring during the trial which the party might have
assigned as grounds in support of such motion.[7]

(Emphasis and footnote added). This Court had an opportunity to address the application of

Rule 59(f) in Miller v. Triplett, 203 W. Va. 351, 507 S.E.2d 714 (1998). In Miller, a jury

awarded a verdict in favor of the plaintiffs as a result of injuries they sustained in an

6
Rule 71A of the West Virginia Rules of Civil Procedure expressly provides
that “[e]minent domain proceedings in the circuit courts are governed by [the] rules of civil
procedure.” This statement is set out under Rule 71A because “[p]rior to amendments in
1998, only a handful of the rules [of civil procedure] were applicable to eminent domain
proceedings.” Franklin D. Cleckley, Robin Jean Davis, and Louis J. Palmer, Jr., Litigation
also Handbook on West Virginia Rules of Civil Procedure, § 71A(a), at 1390 (4th ed. 2012).
See Syl. pt. 2, Taylor v. Miller, 162 W. Va. 265, 249 S.E.2d 191 (1978) (decided under
former rule) (“Rule 81(a)(6) of the West Virginia Rules of Civil Procedure expressly
excludes eminent domain proceedings from the operation of those Rules.”).
7
Additional text in Rule 59(f) is discussed in Section III.J of this opinion, infra.

5

automobile accident. The plaintiffs appealed the favorable verdict and sought a new trial

because of the small size of the award. This Court applied Rule 59(f) and declined to address

the assignments of error made by the plaintiffs because they failed to file a motion for new

trial. In doing so, we held that “if a party fails to make a timely motion for a new trial, Rule

59(f) . . . bars consideration on appeal of alleged errors which occurred during the trial which

a party might have assigned as grounds in support of a motion for a new trial.” Miller, 203

W. Va. at 356, 507 S.E.2d at 719.8 See also Cleckley, Davis, and Palmer, Litigation

Handbook, § 59(f), at 1288 (“Under Rule 59(f) failure to [file a] motion for a new trial may

sound the death knell of an appeal.”).9

8
We explained in Miller that Rule 59(f), which is not found in federal Rule 59,
was originally adopted by this Court as a common law rule. See Syl. pt. 3, State v. Phares,
24 W. Va. 657 (1884) (“In a case tried by a jury, no matter how many [objections] are taken
to rulings of the court made during the trial, unless a motion is made before the trial court to
set aside the verdict, and that motion is overruled, all such errors saved will by the appellate
court be deemed to have been waived.”). See also Syl. pt. 1, in part, Danks v. Rodeheaver,
26 W. Va. 274 (1885) (“If errors . . . are committed by a court in its rulings during the trial
of a case by a jury, the appellate court can not review these rulings, unless . . . a new trial was
asked of the court below and refused[.]”). Moreover, because the rules of civil procedure
generally did not apply to eminent domain proceedings prior to 1998, this Court applied the
common law rule to such proceedings. See Syl. pt. 3, Taylor v. Miller, 162 W. Va. 265, 249
S.E.2d 191 (1978) (“In an eminent domain case, a motion for new trial must be filed and
overruled in order to preserve trial errors for purposes of appellate review.”).
9
A few jurisdictions apply a similar waiver rule. See Small v. S. Norwalk Sav.
Bank, 205 Conn. 751, 758, 535 A.2d 1292, 1296 (1988) (“The defendant’s failure to file a
timely motion to set aside the verdict limits this court to ascertaining whether there has been
plain error.”); Messick v. Atchison, Topeka & Santa Fe Ry. Co., 924 S.W.2d 620, 621 (Mo.
Ct. App. 1996); (“The failure to file a motion for new trial in a timely manner preserves
nothing for appellate review.”); Kennel v. Thomas, 804 A.2d 667, 668 (Pa. Super. Ct. 2002)
(“Consequently, since the trial court refused to address the merits of appellant’s issues raised
(continued...)

6

 The issue raised in the instant case is whether a party may appeal pretrial

rulings of a trial court, even though the party failed to file a post-trial motion for a new trial.

This issue was not addressed on the merits in Miller, but we did allude to it in passing in a

footnote as follows:

We strongly emphasize, however, that failure to make a
motion for a new trial after the entry of judgment results only in
a waiver of errors occurring during the trial which the party
might have assigned as grounds in support of the motion for a
new trial. It does not waive other alleged errors such as those
listed in West Virginia Rule of Civil Procedure 60(b) which
includes, for example, an appeal based on fraud, surprise or
newly discovered evidence.

Miller, 203 W. Va. at 356 n.8, 507 S.E.2d at 719 n.8 (emphasis in original). The commentary

to Rule 59(f) by the original drafters of our rules of civil procedure provides:

As noted by the italicized words in the preceding
paragraph, waiver under the Rule applies only to errors
occurring during the trial. This would be consistent with past
practice as to there being no waiver of errors in rulings as to the
pleadings by failure to move for a new trial. This is even more
important under the Rules for it would include any error as to
any of the pre-trial matters whether or not heretofore deemed
pleadings.

Marlyn E. Lugar and Lee Silverstein, West Virginia Rules of Civil Procedure, Rule 59(f), at

458 (1960). See also Stewart v. Ohio River R. Co., 38 W. Va. 438, 455, 18 S.E. 604, 610

(1893) (“No motion for new trial is necessary where the error relates to the judgment or

9
(...continued)
in his untimely post-trial motions, those issues are waived and not preserved for purposes of
appellate review.”).

7

pleading, such as sustaining or overruling demurrer[.]”). It is clear that Professors Lugar and

Silverstein understood Rule 59(f) as not having any application to assignments of error that

were limited to pretrial rulings.

Therefore, we now hold that Rule 59(f) of the West Virginia Rules of Civil

Procedure does not preclude a party from appealing definitive pretrial rulings of a trial court

that are in the record, even though the party failed to file a post-trial motion for a new trial.10

To the extent that any of DOH’s first eight assignments of error comply with

our holding,11 they will be addressed on the merits.12

10
Our holding is consistent with Rule 103(b) of the West Virginia Rules of
Evidence. The substance of Rule 103(b) is new and was added in 2014. Rule 103(b)
provides, in part, that “[o]nce the court rules definitively on the record . . . before . . . trial
– a party need not renew an objection . . . to preserve a claim of error for appeal.” (Emphasis
added).
11
The ninth assignment of error involves filing a post-trial motion for judgment
as a matter of law, which is referenced in a part of Rule 59(f) that will be discussed in
Section III.J, infra.
12
We will take this opportunity to point out that a review of the merits of
pretrial rulings, under the posture of the exception to the waiver rule in Rule 59(f), is very
limited. As will be seen in this case, the better practice is to not rely on the waiver exception
to filing a motion for new trial because of the extreme limitations imposed upon this Court
in conducting a review of the assignments of error. The better practice is always to file a
timely motion for new trial because this would permit a full review of pretrial rulings that
were properly preserved.

8

 B. DOH’s Request That the Circuit Court Determine Whether Ms. Newton

Sustained Any Compensable Damage to a Viable Property Right

The first issue raised by DOH is that the circuit court committed error in

denying its pretrial request to find that Ms. Newton did not sustain any compensable damage

to a viable property right. In essence, DOH is arguing that the limestone it took had no

compensable value.13 In support of this argument, DOH has cited to a specific page number

in the appendix, App. p. 0184, where presumably its motion and the trial court’s ruling is

supposed to be found. However, the page number of the document cited to in the brief is part

of DOH’s condemnation petition. DOH has not cited to a motion containing the request, nor

a definitive ruling by the circuit court denying the request. See Cooper v. City of Charleston,

218 W. Va. 279, 290, 624 S.E.2d 716, 727 (2005) (“Judges are not like pigs, hunting for

truffles buried in briefs.” (internal quotations and citation omitted)).

In essence, DOH is asking this Court to treat an issue set out in its prayer for

relief in the condemnation petition as a pretrial motion. An issue set out in a prayer for relief,

without more, is not a motion. Moreover, the issue DOH is attempting to bring before this

Court goes to the merits of the condemnation petition. To properly raise this issue below,

DOH had to at least file a motion for judgment on the pleadings or for summary judgment,

13
DOH also has contended that the limestone was not a mineral. However, this
contention is inconsistent with a stipulation DOH made prior to trial. That stipulation, which
is more fully discussed in Section III.H, infra, states: “The minerals reserved by Margaret
Z. Newton include limestone and gravel as defined by the Court.” (Emphasis added).

9

because a resolution of the issue in DOH’s favor would result in a dismissal of the case.

DOH has failed to cite to this Court any type of motion that raised the issue and a definitive

ruling denying the motion. Without such a motion and definitive ruling on the issue

appearing in the record, the first assignment of error was not properly preserved for this

Court to rule upon as an exception to the waiver provision in Rule 59(f).

DOH made a similar argument in a petition for a writ of prohibition it filed

with this Court on August 10, 2012. We refused the requested writ on August 20, 2012. In

that proceeding, DOH also referenced to the issue in its prayer for relief as follows:

It is therefore axiomatic in any condemnation proceeding that
the condemnee must first sufficiently demonstrate an actual and
viable ownership interest in the property taken or damaged,
before just compensation can even be considered. . . . In that
regard, the WVDOH specifically requested that the Court reach
a determination on this issue in the Prayer for Relief of its
Petition.

The above cited language from the petition for a writ of prohibition makes clear that DOH

failed to understand that the rules of civil procedure apply to condemnation proceedings. If

DOH wanted the trial court to make a ruling on a dispositive issue set out in the

condemnation Petition, it had to file a dispositive motion, e.g., a motion for summary

judgment. Trial courts are not obligated to rule upon matters set out in a petition or

complaint without a motion being filed asking the court to rule on the matter.

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 C. Finding DOH Acted in Bad Faith and Sanctioning

DOH by Setting the Date of the Take as April 29, 2011

The second assignment of error by DOH is set out in a convoluted manner.

The best that we are able to discern from the brief is that DOH contends that, prior to trial,

the circuit court found it acted in bad faith and in willful trespass because it removed Ms.

Newton’s limestone without condemning her mineral interest as required by law. As a

consequence of such finding, DOH contends that the circuit court sanctioned it by concluding

that the date of the take would be the date of the filing of the condemnation proceeding, April

29, 2011, as required under West Virginia Department of Highways v. Roda, 177 W. Va. 383,

352 S.E.2d 134 (1986).14

The trial court made findings of fact and conclusions of law in its resolution

of the date of the take issue. In reviewing the trial court’s pretrial order on this issue, we

apply the following standard of review:

On appeal, this Court reviews the circuit court’s final
order and ultimate disposition under an abuse of discretion
standard. We review challenges to findings of fact under a
clearly erroneous standard; conclusions of law are reviewed de
novo.

Burgess v. Porterfield, 196 W. Va. 178, 187, 469 S.E.2d 114, 123 (1996) (citations omitted).

14
It was noted in Roda that “the date of take [is] the date upon which
condemned property is to be valued[.]” Roda, 177 W. Va. at 386, 352 S.E.2d at 138.

11

 As pointed out, the circuit court applied principles of law from the decision in

Roda in determining the date of the take in the instant case. The decision in Roda was an

eminent domain proceeding. The facts in Roda revealed that a contractor for DOH removed

and sold coal from property without the consent of the landowners, and prior to the filing of

a condemnation petition. Subsequent to taking the coal, DOH filed a condemnation petition.

The condemnation proceeding ended in favor of the landowners, and DOH appealed. One

of the issues raised on appeal by DOH was that the trial court committed error in using the

date of the filing of the petition for condemnation as the date of the take. DOH argued that

the value of the coal should have been on a date prior to institution of the proceedings.

In resolving the date of the take issue in Roda, this Court found that DOH,

through its contractor, trespassed on the landowners’ property and acted in bad faith in

removing and selling their coal without permission. Roda noted that “[w]here a trespass is

willful, the trespasser shall pay the full value of the mineral at the time he sells or uses it.”

Roda, 177 W. Va. at 388, 352 S.E.2d at 140. Ultimately Roda set out the following

principles in Syllabus points 1 and 2:

1. In eminent domain proceedings, the date of take for
the purpose of determining the fair market value of property for
the fixing of compensation to be made to the condemnee is the
date on which the property is lawfully taken by the
commencement of appropriate legal proceedings pursuant to
W. Va. Code, 54-2-14a, as amended.

2. When the contractor for the Department of Highways

12

 took the landowners’ property prior to the institution of lawful
condemnation proceedings, the trial judge did not err in refusing
to allow the introduction of evidence as to the value of such
property on a date prior to the institution of such proceedings.

In the instant case, the trial court found that Roda was applicable. The circuit

court’s order concluded that Ms. Newton owned the limestone under the land conveyed to

Mr. Parsons. It was further determined that DOH did not obtain permission from Ms.

Newton to remove the limestone. On this issue the circuit court’s order found that

“excavation, without permission of the owner of the mineral rights, may be tantamount to

trespass and a violation of [Ms. Newton’s] constitutional right.” It also was determined that

DOH removed the limestone before it filed a condemnation proceeding.

Under facts as found by the circuit court, we agree that the date of the take was

the date that DOH filed the condemnation proceeding. We also disagree with DOH’s

characterization of this determination as a sanction. Determining the date of the take is not

a sanction; it is a necessary determination in every condemnation proceeding. Moreover,

Roda and its progeny have made it clear that “the State’s commencement of appropriate legal

proceedings is the date of the taking for the purpose of determining the fair market value of

the real estate taken and damage to the residue for the fixing of compensation to be made to

a condemnee[.]” Edwin Miller Invs., L.L.C. v. CGP Dev. Co., 232 W. Va. 474, 478, 752

S.E.2d 901, 905 (2013). See also West Virginia Dep’t of Transp., Div. of Highways v.

13

Robertson, 217 W. Va. 497, 503, 618 S.E.2d 506, 512 (2005) (“Roda stands for the

proposition that whenever a determination of the value of property is made, that

determination must be based upon the fair market value of the property when the

condemnation application was filed.”). We also do not believe that, for purposes of the date

of the take, it is relevant as to whether DOH’s conduct was in bad faith or an honest mistake.

The controlling fact is that DOH did not seek to condemn the limestone it took until after the

property was removed and used in helping to build the highway. Consequently, the second

assignment of error is without merit.

D. Finding the Hybrid Rule for Valuing Land Did Not Apply

The third issue raised by DOH, which also is written in an unnecessarily

confusing manner, appears to be that the trial court committed error in determining, prior to

trial, that the hybrid approach for valuing land set out in West Virginia Department of

Highways v. Berwind Land Co., 167 W. Va. 726, 280 S.E.2d 609 (1981), did not apply. This

issue presents a question of law that we review de novo. See Syl. pt. 1, Chrystal R.M. v.

Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from

the circuit court is clearly a question of law . . . , we apply a de novo standard of review.”).

The decision in Berwind involved a condemnation proceeding brought by DOH

to obtain 56 acres of land in fee that contained a total mineral tract (coal) of 17 acres. The

14

jury valued the land and minerals at $58,500.00. The land owner appealed and argued that

the trial court erred in not allowing it to prove the market value of the land by introducing

evidence of the separate value of the coal underlying it. This Court rejected the argument

and found that separate evidence of the value of the coal was actually introduced. In order

to provide guidance for future cases involving the condemnation of an estate in fee, which

contains purported valuable minerals or other elements such as trees, the following “hybrid”

test was set out in Syllabus point 2 of Berwind:

The owner of fee property taken by eminent domain may
prove the market value of the land by introducing evidence of
the separate value of the elements present in or on the land when
it can be shown that (1) the existence and quantity of the
element of value can be accurately determined, (2) other factors,
such as the expense of production and marketing, were taken
into consideration in arriving at the value sought to be
introduced, (3) the element is clearly significant in value, and (4)
the use of the property for purposes of exploiting that element
of value is not inconsistent or incompatible with the highest and
best use to which the property may be put or that the subservient
use has been devalued to the degree it interferes with the highest
and best use of the property taken. The jury should be instructed
that the evidence of separate values is only a factor to be
considered in determining the total market value of the land; to
the extent such separate values are inconsistent with the highest
and best use of the land they should be disregarded in arriving
at the figure of just compensation.

In the instant proceeding, the circuit court determined that the Berwind hybrid

rule did not apply. We agree with the trial court. See Equitable Gas Co. v. Kincaid, 168

W. Va. 646, 285 S.E.2d 421 (1981) (applying Berwind in a proceeding condemning land and

15

coal).

In this case, there was no need to value the land because DOH had purchased

the surface from Mr. Parsons. The issue in this case was solely that of the value of the

limestone owned by Ms. Newton. Under Roda, a valuation of the limestone was independent

of the previously purchased surface. As we noted in Roda, “[t]his case is distinguishable

from the facts presented to us in Berwind in that it is similar to an action in willful trespass.”

Roda, 177 W. Va. at 388, 352 S.E.2d at 140. Thus, the trial court properly found that

Berwind’s hybrid rule did not apply.

E. Using a Time Frame to Show Marketability of Limestone

The fourth issue presented by DOH is that the trial court committed error in

determining that Ms. Newton could use an eighteen-month time frame, after the date of the

take, to show marketability for the limestone. Specifically, the trial court held that Ms.

Newton “may present evidence concerning uses of the limestone, markets and marketability

of the limestone available during the period from April 29, 2011 through October 29, 2012.”

Ms. Newton argues, for the sole purpose of responding to the assignment of error, that the

circuit court did not abuse its discretion in allowing a time frame of eighteen months to show

16

marketability.15 The issue presented requires this Court to decide whether the trial court

abused its discretion in requiring Ms. Newton to introduce evidence of the marketability of

limestone during an eighteen-month time frame. See Syl. pt. 1, in part, B.F. Specialty Co.

v. Charles M. Sledd Co., 197 W. Va. 463, 475 S.E.2d 555 (1996) (“A trial court abuses its

discretion when its rulings on discovery motions are clearly against the logic of the

circumstances then before the court and so arbitrary and unreasonable as to shock our sense

of justice and to indicate a lack of careful consideration.”).

It is clear from our decision in Roda that even when minerals are taken without

permission and prior to the filing of a condemnation petition, the parties still cannot

introduce “evidence as to the value of such property on a date prior to the institution of such

proceedings.” Roda, 177 W. Va. at 389, 352 S.E.2d at 140. Nor does Roda require the

mineral owner to show marketability of the minerals over a prospective time period after the

date of the take. Roda only requires the owner of property taken without permission show

the value of the property on the date of the take. Consistent with Roda, the circuit court’s

order in the instant proceeding made clear that “[t]he market price for the limestone minerals

taken from the property . . . is . . . fixed as of April 29, 2011,” which was the date of the take.

15
One of Ms. Newton’s cross-assignments of error is that it was improper for
the circuit court to require her to establish marketability of the limestone because the decision
in Roda did not require such a showing. This cross-assignment of error was lodged by Ms.
Newton for review if this Court reversed the judgment and ordered a new trial.

17

However, the circuit court’s order went beyond Roda and also required Ms. Newton to

establish a market for the limestone during an eighteen-month period from the date of the

take. Clearly, such a requirement is not found in Roda.

DOH has set out arguments based upon evidence actually presented at trial and

jury instructions given during the trial in order to show that the eighteen-month time frame

for showing marketability was an abuse of discretion and prejudicial. The problem with

DOH’s reliance on evidence and jury instructions submitted at trial is that we are constrained

from reviewing such matters. This appeal is limited to reviewing pretrial rulings, not

evidence or jury instructions actually introduced or given at trial. It was incumbent upon

DOH to file a post-trial motion for new trial in order for this Court to assess the prejudicial

impact of the pretrial ruling on evidence introduced during the trial, as well as jury

instructions. To do otherwise would make the general waiver under Rule 59(f) meaningless.

The circuit court’s reasoning for requiring an eighteen-month time frame was

set out in the order. The circuit court’s order indicated that, because of “the quantity of

limestone minerals excavated and removed from the property,” Ms. Newton should “be

allowed a market time frame window for the limestone minerals taken[.]” Although Roda

does not support such a requirement, and we disapprove of the same under the facts of this

case, we do not believe that this issue requires a new trial under our limited review. This is

18

because, and contrary to arguments by DOH, the trial court’s order did not affect the

valuation of the limestone on the date of the take. The order only required Ms. Newton to

show that a market existed for the limestone during the eighteen-month period. Therefore,

any error in the pretrial ruling was harmless. See Parham v. Horace Mann Ins. Co., 200

W. Va. 609, 617, 490 S.E.2d 696, 704 (1997) (“[W]e conclude the procedural error

committed by the trial court . . . [was] harmless, and decline to reverse the final decision of

the trial court.”); Danser v. Dorr, 72 W. Va. 430, 432, 78 S.E. 367, 367 (1913) (“This court

will not reverse for harmless error.” (citations omitted)).

F. Allowing Evidence of DOH’s Testing and Use of the
Limestone to Show the Limestone Had Commercial Quality

The fifth issue presented by DOH is that the trial court committed error in

ruling before trial that Ms. Newton could introduce evidence of DOH’s use and testing of the

limestone to show its quality. A trial court’s ruling on the admissibility of evidence is

reviewed for an abuse of discretion. See McDougal v. McCammon, 193 W. Va. 229, 235,

455 S.E.2d 788, 794 (1995) (“Rulings on the admissibility of evidence . . . are committed to

the discretion of the trial court.”).

In a pretrial order, the circuit court ruled that Ms. Newton could

demonstrate the use of the limestone excavated from the
property to provide quality, including the requirements of testing
parameters established by the limestone industry and the

19

 American Association of State Highway and Transportation
Officials which require limestone products to meet the standard
specifications criteria of governmental departments in charge of
the regulatory oversight of construction projects such as
Corridor H, a federally funded highway.

According to DOH, this ruling permitted the introduction of immaterial and irrelevant

evidence, created confusing and inconsistent instructions, and undermined other rulings

concerning the market.

DOH’s objections to this pretrial ruling are not reviewable in this appeal,

because they would involve an examination of trial testimony and other evidence. For

example, in order to determine whether the evidence was irrelevant, we would have to review

it in the context of actual evidence introduced during the trial–not in the hypothetical

abstract. As stated earlier, DOH has locked itself out of a full review because it chose not

to file a post-trial motion for new trial.16 Thus, under our limited review, we find no error

in the pretrial ruling.

16
The federal cases cited without discussion by DOH have no application to this
assignment of error. See United States v. Cors, 337 U.S. 325, 332, 69 S. Ct. 1086, 93 L. Ed.
1392 (1949) (case involved an attempt to recover money for government’s requisition of a
steam tug boat, not the use of government standards for testing the quality of limestone); St.
Genevieve Gas Co. v. Tennessee Valley Auth., 747 F.2d 1411 (11th Cir. 1984) (case involved
condemnation of mineral leases, not the use of government standards for testing the quality
of limestone); United States v. Weyerhaeuser Co., 538 F.2d 1363 (9th Cir. 1976) (case
involved condemnation of a road for hauling timber, not the use of government standards for
testing the quality of limestone); United States v. Whitehurst, 337 F.2d 765 (4th Cir. 1964)
(case involved the valuation of land in fee, not the use of government standards for testing
the quality of limestone).

20

 G. Introduction of Evidence Related to Limestone

Excavated by DOH from Other Properties

The sixth issue raised by DOH concerns the trial court’s denial of its pretrial

motion to exclude evidence involved with limestone it excavated from properties unrelated

to Ms. Newton’s property. As we previously mentioned, we review a trial court’s ruling on

the admissibility of evidence for an abuse of discretion. See Lively v. Rufus, 207 W. Va. 436,

443, 533 S.E.2d 662, 669 (2000) (“[R]ulings on the admission of evidence . . . are committed

to the discretion of the trial court.” (internal quotations and citation omitted)).

The record indicates that, in denying DOH’s motion to exclude evidence

involved with other excavated limestone, the trial court asked both parties to submit a

limiting instruction that would eventually be given to the jury. DOH declined to tender an

instruction, but Ms. Newton did provide the same. The limiting instruction offered by Ms.

Newton stated the following:

During the presentation of these proceedings before you,
the Court has allowed reference to limestone volumes and
procedures by the WVDOH and its contractors involving
limestone deposits and the excavation thereof on property other
than the property of the Respondent. You are directed to
consider matters of limestone and procedures by the WVDOH
on properties other than the Respondent solely for the purposes
of demonstrating documentation, processes and procedures by
the WVDOH and for purposes of demonstrating methodology
and accuracy of calculations made by the experts who have
generated reports and provided testimony before you. Your
calculations of volume and valuation of limestone in this action
is limited solely to the 6.714 acre construction area on the

21

 property of the Respondent.

DOH contends that the limiting instruction did not cure the problems associated

with the evidence. According to DOH, the evidence was irrelevant, immaterial, and unfairly

prejudicial. As with the previous assignment of error, we cannot reach the merits of DOH’s

argument because to do so requires this Court to review the objected to evidence in the

context of all evidence admitted at trial. In Syllabus point 7 of Torrence v. Kusminsky, 185

W. Va. 734, 408 S.E.2d 684 (1991), we explained that “[a] judgment will not be reversed

because of the admission of improper or irrelevant evidence when it is clear that the verdict

of the jury could not have been affected thereby.’ Syllabus Point 7, Starcher v. South Penn

Oil Co., 81 W. Va. 587, 95 S.E. 28 (1918).” In other words, even if we assumed the trial

court should have granted DOH’s pretrial motion to exclude the evidence, we still would

have to assess the prejudicial impact of that evidence. Determining prejudicial impact cannot

be divorced from a review of the trial testimony and other evidence. DOH has chosen to

limit our ability to review the trial record because it failed to file a motion for new trial.

Consequently, this assignment of error is not grounds for reversing the judgment in this case.

22

 H. Instructions Given to the Jury Before Evidence Was Presented

The seventh issue raised by DOH concerns a pretrial ruling by the trial court

to instruct the jury on five issues that had to be accepted as established. As a general matter,

we review for an abuse of discretion instructions given by the trial court to a jury. See Syl.

pt. 4, in part, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995) (“Deference is given

to a trial court’s discretion concerning the specific wording of the instruction, and the precise

extent and character of any specific instruction will be reviewed only for an abuse of

discretion.”).

Prior to trial, Ms. Newton filed her second motion for partial summary

judgment. In that motion, Ms. Newton asked the court to rule as a matter of law that the

following five statements of fact could be read to the jury before evidence was taken in the

case:

1. Paul Williams and Margaret Z. Williams, now Newton,
conveyed the surface only to James Parsons on June 4, 1980,
reserving unto themselves fee simple ownership of all minerals
underlying the Parsons real estate, without limitation or
restriction, and which reservation and exception is free of
ambiguity and clear in its intent.

2. The minerals reserved by Margaret Z. Newton include
limestone and gravel as defined by the Court.

3. The WVDOH entered onto the Parsons real estate and
excavated and appropriated the limestone minerals of Newton
without permission of the Respondent.

23

 4. The WVDOH made no communication or contact with
Margaret Z. Newton prior to entering onto the property or prior
to appropriating the limestone minerals from the Newton
reserves.

5. The failure of the WVDOH to communicate with the
Respondent precluded an opportunity to assess the value of the
limestone minerals prior to appropriation of the minerals by the
WVDOH.

These statements of fact were asked to be read to the jury so as to save judicial resources in

proving facts that in Ms. Newton’s belief could not be controverted. The trial court agreed

with Ms. Newton and granted her partial summary judgment on this issue. In its brief before

this Court, DOH concedes that it “stipulated to item nos. 1 and 2.”

DOH argues that it was prejudiced by instructions 3, 4, and 5, and that those

instructions were in conflict with other instructions given to the jury. Assuming that it was

error to give these instructions, as previously stated, we cannot determine the prejudicial

effect the instructions had on the outcome of the case without reviewing the trial evidence.

We are precluded from reviewing such evidence. Thus, this assignment of error is not

grounds for a new trial.

24

 I. Excluding Evidence of the Percentage of Recovery Yields of the Limestone

The eighth assignment of error by DOH is that the trial court committed error

in ruling prior to trial that it could not present evidence of yield and recovery rates for the

limestone. We review this issue for abuse of discretion. See State v. Bowling, 232 W. Va.

529, 540, 753 S.E.2d 27, 38 (2013) (“We review a circuit court’s decision to exclude

evidence for an abuse of discretion.”).

Ms. Newton filed a motion in limine before trial seeking to preclude DOH from

presenting any evidence of percentage yields information, on the grounds that such evidence

involved production costs, which were precluded from evidence. The trial court agreed with

Ms. Newton and entered an order stating the following:

The removal of overburden and other materials in the recovery
of limestone is not an issue in this action under Roda. The
Court has previously found . . . that compensation for the
underlying minerals excavated by the Petitioners is in
accordance with [Roda], in that the compensation for the
underlying minerals is the fair market value of the limestone
which was removed and used before April 29, 2011, or in its
present uncovered state on that date, ready for loading, with no
consideration of the production, mining or excavation costs.
Therefore, the percentage recovery yields of the limestone noted
by the experts of [DOH] is irrelevant, immaterial, and shall be
stricken from the reports and not presented as evidence.

We find the trial court’s ruling to be consistent with Roda.

As we previously noted, in Roda a contractor for DOH improperly removed

25

and sold coal from property prior to DOH filing a condemnation petition to obtain the

property. In its appeal from the jury verdict in favor of the property owners, DOH argued

that the trial court improperly “limited consideration of the coal to its condition as uncovered

or removed, thereby omitting certain costs, such as production and marketing, in ascertaining

the fair market value of the coal.” Roda, 177 W. Va. at 388, 352 S.E.2d at 139-40. DOH

took the position in Roda that the holding in Berwind required such evidence to be

considered. Berwind indicated that factors to be considered in valuing minerals included the

expense of production and marketing. We rejected the application of Berwind in Roda and

held as follows:

When a condemnor had prior knowledge that its
contractor was selling a condemnee’s coal which had been
severed from the land before the institution of lawful
condemnation proceedings, the fair market value of the
condemnee’s coal, removed before the lawful date of take, is the
price for which the coal could be sold, ready for loading, by a
person desirous of selling to a person wishing to buy, both freely
exercising prudence and intelligent judgment as to its value,
without consideration of the mining, production, excavation and
marketing costs.

Syl. pt. 3, Roda, 177 W. Va. 383, 352 S.E.2d 134.

Under the facts of the instant case, the circuit court was correct in finding Roda

would not permit the valuation of the limestone on the date of the take to be offset by

evidence of yield and recovery rates for the limestone. As in Roda, when DOH decides to

take property “without exercising its powers of eminent domain in the manner prescribed by

26

law, it cannot be heard to complain that the rules applicable to ordinary condemnation

proceedings were not applied to the instant action which it forced upon respondent

[condemnee].” Roda, 177 W. Va. at 389, 352 S.E.2d at 141 (internal quotations and citation

omitted). Thus, we find no error in the pretrial ruling excluding evidence of yield and

recovery rates for the limestone.17

J. Denying Motion for Judgment as a Matter of Law

The last assignment of error by DOH is that the trial court erred in denying its

motion for judgment as a matter of law. We review the denial of a motion for judgment as

a matter of law de novo. See Syl. pt. 1, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16

(2009) (“The appellate standard of review for an order granting or denying a renewed motion

for a judgment as a matter of law after trial pursuant to Rule 50(b) . . . is de novo.”).

17
We must point out that DOH could have avoided the instant litigation if it
simply would have followed our decision in State by Department of Natural Resources v.
Cooper, 152 W. Va. 309, 162 S.E.2d 281 (1968). In Cooper, we held the following in
Syllabus point 1:

Where the State of West Virginia, or any entity with
statutory authority to take property for public use, undertakes to
acquire the fee simple title to a parcel of land all persons who
own an interest or an estate in such parcel must be joined as
party defendants in the proceeding.

Id. Under Cooper, DOH should have filed a condemnation proceeding jointly against Mr.
Parsons and Ms. Newton (and her then existing spouse). DOH’s decision to ignore the rights
of the mineral owner in this case, Ms. Newton, has resulted in costs that easily could have
been avoided.

27

 DOH’s brief indicates that it moved the court for judgment as a matter of law

at the close of Ms. Newton’s case-in-chief and at the end of its case-in-chief. The circuit

court denied both motions. DOH now asks this Court to reverse the judgment and grant it

judgment as a matter of law. Ms. Newton contends that this issue was not preserved for

appellate review. We agree.18

We begin by looking at additional text in Rule 59(f). The additional relevant

text of Rule 59(f) states:

[I]f a party has made a motion under Rule 50(b) for judgment in
accordance with the party’s motion for judgment as a matter of
law and such motion is denied, the party’s failure to move for a
new trial is not a waiver of error in the court’s denying or failing
to grant such motion for judgment as a matter of law.

Under Rule 59(f), if a party makes a proper motion for judgment as a matter of law under

Rule 50(b), a party’s failure to file a post-trial motion for new trial will not constitute waiver

of the Rule 50(b) issue. The import of Rule 59(f) is that to preserve for appeal the issue of

18
Our agreement with Ms. Newton is for reasons different than those cited by
her. Ms. Newton contends that DOH did not make a motion for judgment as a matter of law
after the close of all the evidence, but before the case was submitted to the jury. The trial
court’s judgment order indicated that DOH did, in fact, renew its motion for judgment as a
matter of law prior to the case being sent to the jury. During oral arguments, counsel for Ms.
Newton indicated that he drafted the judgment order and that he made a mistake in asserting
that DOH renewed the motion. This alleged drafting error is of no moment to us. “It is a
paramount principle of jurisprudence that a court speaks only through its orders.” Legg v.
Felinton, 219 W. Va. 478, 483, 637 S.E.2d 576, 581 (2006). Consequently, “we are left to
decide this [issue] within the parameters of the circuit court’s order.” State v. White, 188
W. Va. 534, 536 n.2, 425 S.E.2d 210, 212 n.2 (1992).

28

a trial court’s denial of a motion for judgment as a matter of law, a party must file a post-trial

motion for judgment as a matter of law under Rule 50(b). The relevant text of Rule 50(b)

provides:

If, for any reason, the court does not grant a motion for
judgment as a matter of law made at the close of all the
evidence, the court is considered to have submitted the action to
the jury subject to the court’s later deciding the legal questions
raised by the motion. The movant may renew the request for
judgment as a matter of law by filing a motion no later than 10
days after entry of judgment and may alternatively request a new
trial or join a motion for a new trial under Rule 59.

Even though Rule 50(b) provides that a party “may” renew the motion, this

does not impact what consequence flows from a failure to renew the motion. The following

observations have been made regarding the failure of a party to renew a motion for judgment

as a matter of law under Rule 50(b):

A party’s failure to file a post-verdict motion under Rule
50(b) precludes an appellate court from entering a judgment
contrary to that which was entered by the trial court. . . . A post-
verdict motion is necessary because determination of whether a
new trial should be granted or a judgment entered under Rule
50(b) calls for the judgment in the first instance of the trial judge
who saw and heard the witnesses, and has the feel of the case
which no appellate printed transcript can impart.

Cleckley, Davis, and Palmer, Litigation Handbook, § 50(b), at 1116-17. The federal

counterpart to Rule 50(b) also uses the term “may,” and federal courts also have interpreted

their rule as precluding appellate review of a sufficiency of the evidence claim if a party fails

29

to file a post-verdict motion for judgment as a matter of law.19 In Unitherm Food Systems,

Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407, 126 S. Ct. 980, 989, 163 L. Ed. 2d 974 (2006),

the United States Supreme Court expressly held “that since respondent failed to renew its

preverdict motion as specified in Rule 50(b), there was no basis for review of respondent’s

sufficiency of the evidence challenge.”20 The decision in Unitherm was applied in First

United Pentecostal Church v. Guideone Specialty Mutual Insurance Co., 189 F. App’x 852

(11th Cir. 2006).

19
The relevant text of federal Rule 50(b) provides as follows:

If the court does not grant a motion for
judgment as a matter of law made under Rule
50(a), the court is considered to have submitted
the action to the jury subject to the court’s later
deciding the legal questions raised by the motion.
No later than 28 days after the entry of judgment
– or if the motion addresses a jury issue not
decided by a verdict, no later than 28 days after
the jury was discharged – the movant may file a
renewed motion for judgment as a matter of law
and may include an alternative or joint request for
a new trial under Rule 59.

(Emphasis added).
20
We often look to federal decisions for guidance when our rules are similar
in wording. See State ex rel. Paige v. Canady, 197 W. Va. 154, 160, 475 S.E.2d 154, 160
(1996) (“Because the language contained in Rule 26(c) of the West Virginia Rules of Civil
Procedure is nearly identical to Rule 26(c) as contained in the Federal Rules of Civil
Procedure, we look to federal case law for guidance.”); State v. Tanner, 175 W. Va. 264, 266,
332 S.E.2d 277, 279 (1985) (“This Rule is patterned after Rule 26.2 of the Federal Rules of
Criminal Procedure, and in applying it the Court has looked to Federal precedents for
guidance.”).

30

 In First United, the plaintiff brought a breach of contract and bad faith action

against the defendant insurer. During the trial, before a jury, the defendant properly moved

the court for judgment as a matter of law. However, after the jury returned a verdict in favor

of the plaintiff, the defendant filed an appeal without filing any post-trial motions. The

Eleventh Circuit found that, under Unitherm, it could not review the defendant’s claim that

it should have been granted judgment as a matter of law:

After carefully reviewing the record, we conclude that
GuideOne made a Motion for Judgment as a Matter of Law
pre-verdict, pursuant to [Rule] 50(a); however, it failed to renew
its motion postverdict or file a motion for new trial pursuant to
Rule 50(b). Because GuideOne failed to renew its motion or file
a post-trial motion for new trial, we are precluded from entering
judgment as matter of law in GuideOne’s favor or granting it a
new trial based on the sufficiency of the evidence.

First United, 189 F. App’x at 855-56 (citations omitted). See Climent-Garcia v. Autoridad

de Transporte Maritimo y Las Islas Municipio, 754 F.3d 17, 20 (1st Cir. 2014) (“Despite

having twice filed for judgment as a matter of law during trial, the MTA failed to renew this

motion post-verdict. That failure leaves the MTA’s claim dead in the water, for an appellate

court cannot review the denial of a Rule 50(a) motion based on the sufficiency of the

evidence when the party appealing the verdict failed to renew its sufficiency challenge in the

district court pursuant to Rule 50(b).”); New York Marine & Gen. Ins. Co. v. Cont’l Cement

Co., LLC, 761 F.3d 830, 840 (8th Cir. 2014) (“A party cannot challenge the sufficiency of

the evidence if it failed to file a postverdict motion under Rule 50(b) after the district court

denied its Rule 50(a) motion.”); Pryce v. Bd. of Educ. of Prince George’s Cnty., 422

31

F. App’x 229, 229 (4th Cir. 2011) (“As Pryce failed to file a post-verdict motion pursuant

to [Rule] 50, and failed to move for a new trial pursuant to [Rule] 59, however, this court is

without power to review his claim regarding the sufficiency of the evidence.”); Sykes v. Pub.

Storage Inc., 425 F. App’x 359, 363 (5th Cir. 2011) (“Sykes properly filed a Rule 50(a)

motion before the case was submitted to the jury, but he failed to preserve his challenge to

the sufficiency of the evidence supporting the jury verdict on his contract claim by making

a post-verdict Rule 50(b) motion for judgment as a matter of law or a motion for a new

trial.”); Williams v. Gonterman, 313 F. App’x 144, 145 (10th Cir. 2009) (“The Supreme

Court has made clear that a party’s failure to comply with Rule 50(b) forecloses its challenge

to the sufficiency of the evidence.”); Downey v. Strain, 510 F.3d 534, 543 (5th Cir. 2007)

(“[A] Rule 50(b) motion is necessary to preserve an argument for appellate review even

when a Rule 50(a) motion was denied after all the evidence was presented.”).

Consequently, we now hold that a party’s failure to file a post-verdict motion

for judgment as a matter of law under Rule 50(b) of the West Virginia Rules of Civil

Procedure precludes this Court from reviewing an insufficiency of the evidence claim.

In the instant case, DOH argues that Ms. Newton’s evidence was insufficient

with respect to showing marketability of the limestone; therefore, DOH claims, it was

entitled to judgment as a matter of law. Under our holding, we cannot reach the issue of the

32

sufficiency of the evidence because DOH failed to file a post-verdict motion for judgment

as a matter of law as required under Rule 50(b).21

IV.

CONCLUSION

The circuit court’s order of judgment entered on April 16, 2014, is affirmed.

Affirmed.

21
As previously mentioned in this opinion, Ms. Newton filed a cross-appeal.
The cross-appeal set out two issues. First, Ms. Newton argued that the trial court committed
error in requiring her to show marketability of the limestone. This issue is now moot because
we have denied DOH a new trial. The second issue involves Ms. Newton’s request for
attorney’s fees. We decline to address this issue because the record indicates the matter is
pending before the circuit court.

33