West Virginia Dep't of Transportation v. Newton, No. 16-0325 (Mar. 7, 2017) was the second time that case had come before the West Virginia Supreme Court. As we noted here ("DOT Should Not Have Mined Privately Owned Limestone Without Owner's Permission"), the court held that the the Department of Highways should have instituted eminent domain proceedings before it started removing Ms. Newton's limestone from her land. After she prevailed in her mandamus action, WVDOH did so.
As a result of the condemnation action, Newton was awarded nearly $1 million in compensation, and $250k in attorneys' fees for the mandamus and condemnation actions under the Uniform Relocation Act, which is incorporated into West Virginia law. The URA provides for fee shifting when an owner is forced to initiate a claim for compensation.
WVDOH appealed, arguing that hey, we condemned Newton's property (after she won her mandamus action), so she can't get fees. Slip op. at 8 ("Maintaining that the condemnation action was filed in a timely manner, the DOH asserts that 'the inquiry into whether Ms. Newton is entitled to associate litigation costs should end with a simple review of the caption of this case,' which reads West Virginia Department of Highways v. Newton.' In other words, the DOH contends that because it ultimately filed the eminent domain proceeding, there was not inverse condemnation."). Paging Mr. Rosten! The court rejected the argument, holding that DOH didn't really intend to institute condemnation proceedings, but was forced to by her mandamus action.
It didn't matter that Newton's mandamus action (which sought to compel WVDOH to institute condemnation proceedings) and not a formal inverse condemnation case. Under West Virginia law, "that is the only mechanism available to an aggrieved property owner in this state who believes his or her property has been damaged or taken without compensation." Slip op. at 11."Thus," the court concluded, "the mandamus and eminent domain proceedings constituted an inverse condemnation action[.]" Slip op. at 12. Besides, WVDOH actedi in bad faith. Fees awarded.
But (and there's almost always a "but" isn't there?), the court sent the case back to the trial court for a recalculation of the amount of fees to be awarded. Newton retained her lawyer on a contingency fee, and the court concluded that the URA requires a "reasonable" fee, and thus the contingency arrangement "cannot be the sole basis for determining" the amount of the fee award. Slip op. at 18. Since the trial court had not undertaken the fact-driven analysis (twelve factors!) which West Virginia case law requires to determine a reasonable fee, the Supreme Court sent the case back for that determination.