Jones et al v. Consolidation Coal Company

Filing 81

MEMORANDUM OPINION AND ORDER GRANTING IN PART AS FRAMED DEFENDANTS 55 MOTION IN LIMINE TO EXCLUDE PLAINTIFFS TESTIMONY REGARDING VALUATION OF COAL MINE OR USE OF SUBSURFACE AND DEFERRING RULING ON $300,000.00 CLAIM OF DAMAGES. Signed by Senior Judge Frederick P. Stamp, Jr on 3/19/14. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES D. JONES, II, TIMOTHY E. JONES
and JANET L. JONES,
Plaintiffs,
v.

Civil Action No. 1:13CV11
(STAMP)

CONSOLIDATED COAL COMPANY,
d/b/a CONSOL ENERGY, a Delaware
for profit corporation authorized
to do business in West Virginia,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AS FRAMED
DEFENDANT’S MOTION IN LIMINE TO EXCLUDE
PLAINTIFFS’ TESTIMONY REGARDING VALUATION
OF COAL MINE OR USE OF SUBSURFACE AND
DEFERRING RULING ON $300,000.00 CLAIM OF DAMAGES
I.

Procedural History

This case was removed to this Court from the Circuit Court of
Marion

County,

West

Virginia.

There

were

originally

two

defendants, however, the parties stipulated to the dismissal of
Consol Energy, Inc.; thus, Consolidation Coal Company is the only
remaining defendant.

The plaintiffs are seeking a declaratory

judgment that they are the owners of a 0.25 acre parcel of land in
Marion County, West Virginia, and seek compensatory damages for
willful trespass for the defendant’s removal of coal underlying the
parcel and for the defendant’s continued use of the subsurface.
The defendant filed an answer and counterclaim to the plaintiffs’
complaint.

In its counterclaim, the defendant claims that it had

rightful possession of the property pursuant to adverse possession.
Thus, the defendant requests that this Court find that it is
entitled to a declaratory judgment that title to the property was
acquired through adverse possession and quiet title to the 0.25
acre parcel of land.
The defendant has filed two motions in limine.

In its first

motion in limine, the defendant requests that this Court exclude
any testimony the plaintiffs may offer regarding the valuation of
the coal mined from the property or the use of the subsurface of
the property. The plaintiffs timely filed responses to both of the
defendant’s motions.
II.

Facts

The plaintiffs contend that they were conveyed the parcel in
question

by

general

warranty

Snodgrass in July 2009.
plaintiffs

indicate

that

deed

from

Sandra

Grace

Powell

After being conveyed the property, the
they

were

in

negotiations

defendant to sell the 0.25 acre parcel to the defendant.

with

the

However,

those negotiations fell through and the plaintiffs brought this
action because the defendant had already been removing coal from
the parcel.

The defendant argues that in 1977, a deed was given

for the 0.25 parcel from Sandra Powell and James F. Powell to
Warren E. Mafield and Juanita V. Mafield.

The defendant asserts

that the Mafields adversely possessed the property from 1977 until
March 5, 2009 when Juanita V. Mafield sold the parcel to the

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defendant. Thus, the defendant asserts that the plaintiffs have no
standing for their claims because the defendant is the rightful
owner of the property.1
III.

Defendant’s Motion in Limine to Exclude Testimony

The defendant requests that this Court exclude any testimony
the plaintiffs attempt to use regarding the valuation of coal mined
or under the subject property or the value of the continued use of
the subsurface for air flow.

The defendant indicates that the

plaintiffs have not identified any expert to do these calculations
but

have

discovery.

instead

presented

their

own

calculations

through

The defendant argues that because the plaintiffs have

not presented expert testimony but merely lay testimony, they
should be excluded from introducing any evidence on the value of
the coal mined from the subsurface of the property or the value of
the continued use of the subsurface for air flow.
The plaintiffs argue in their response that although the
defendant has cited the correct law for calculating damages, it
also has the burden of proof of showing whether or not it should
receive any offset for production costs.

Thus, the offset is not

guaranteed for the defendant. Further, the plaintiffs contend that
they should be able to argue that the value of the continued use of

1

This short factual statement is not a complete version of
what the parties claim has occurred in this case but rather is
provided as background to the parties’ arguments in relation to the
motions in limine.
3

the property is at least $300,000.00 because the defendant filed an
affidavit with this Court stating that it would, at a minimum, cost
the defendant that much to seal off a portion of the mine shaft
that runs under the subject property. Additionally, the plaintiffs
assert that they should be able to testify as to the annoyance and
inconvenience that was caused by the defendant’s trespass.
A.

Damages for the Removal of the Coal

The plaintiffs concede that the defendant cites the correct
law for calculating damages for the wrongful removal of coal and
other minerals by a trespasser. As such, if the defendant is found
to have trespassed in this action, the damages for the removal of
the coal from the subsurface of the subject property will be
calculated

based

on

whether

innocently or willfully.

or

not

the

defendant

trespassed

Damages for an innocent trespass, under

West Virginia law, are calculated by reducing the price of the
removed coal by the cost of mining and removal by the trespasser.
Syl. Pt. 6, Bryan v. Big Two Mile Gas Co., 577 S.E.2d 258 (W. Va.
2001) (citing Syl. Pt. 8, Pan Coal Co. v. Garland Pocahontas Coal
Co., 125 S.E. 226 (W. Va. 1924)).

However, damages for a willful

trespass, under West Virginia law, are calculated as the price of
the removed coal “at the pit-mouth or loading tipple, without
deduction for mining and carrying it to the place of conversion.”
Id.

4

Based on the above, the defendant’s motion is granted in part
pursuant to Federal Rule of Evidence 702.

Under Rule 702,

“[a] witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or
to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the
product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to
the facts of the case.”
As the calculations involved in determining the damages in this
case may require an expert opinion about the valuation of the coal
removed from the subsurface of the subject property, the plaintiffs
would have had to identify an expert to render an opinion about
those damages.

As the plaintiffs have not disclosed any expert to

opine as to those damages, the plaintiffs are precluded from
introducing any expert testimony related to the value of the coal
mined under the subject property or the value of the continued use
of the subsurface for air flow.
However, this Court notes that “[i]t is generally, if not
universally, accepted that an owner of property may testify as to
his or her opinion of such property’s value without demonstrating
any additional qualifications to give opinion evidence.” In re
Brown, 244 B.R. 603, 611 (W.D. Va. BR. 2000) (citing Justice v.
Pennzoil, 598 F.2d 1339, 1344 (4th Cir. 1979); Kestenbaum v.
Falstaff Brewing Corp., 514 F.2d 690 (5th Cir. 1975); Neff v.
Kehoe, 708 F.2d 639 (11th Cir. 1983)).
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Thus, “[q]ualified and

knowledgeable witnesses, [including the owner of the property] may
give their opinion or estimate of the value of the property . . .
but to have probative value, that opinion or estimate must be
founded upon substantial data, not mere conjecture, speculation or
unwarranted

assumption.

It

must

have

a

rational

foundation.”

United States v. Sowards, 370 F.2d 87, 92 (10th Cir. 1966); see
also Christopher Phelps & Associates, LLC v. Galloway, 492 F.3d
532, 542 (4th Cir. 2007) (citing Fed. R. Evid. 701) (“Lay opinion
testimony [ ] may appropriately be admitted if it is helpful to the
jury; if it is based on the perception of the witness; and if it is
not expert testimony under Federal Rule of Evidence 702.”).

Thus,

at this time, given that the Court is unaware of the testimony that
the plaintiffs may want to proffer given that they are the owners
of the subject property, the Court cannot conclusively determine
whether or not they would be allowed to provide lay testimony on
the value of the property in terms of an innocent or willful
trespass.

However, this Court couches this finding by reminding

the plaintiffs that any testimony they may want to give must not be
speculative or based on conjecture.

This Court will, therefore,

require a detailed proffer from plaintiffs as to the specific
testimony to be offered prior to plaintiffs offering any testimony
as to the value of the property through the plaintiffs.

As such,

the defendant’s motion in limine is granted in part as framed.

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B.

Plaintiffs’ Claim as to the $300,000.00

The plaintiffs argue that the damages covered by Bryan and Pan
Coal are not the only available damages.

To reiterate, the

plaintiffs contend that they are also entitled to testify as to the
value of the property, up to $300,000.00, because the defendant has
asserted that it would cost $300,000.00 to seal off a portion of
the mine shaft that runs through the subject property.
The plaintiffs’ claim for $300,000.00 is based on the cost
that the defendant would incur, not the plaintiffs.

However,

during the pretrial conference, the defendant conceded that if
found to be trespassing, it would shut off the mine shaft which
would likely cost the defendant $300,000.00 but which would be
solely incurred by the defendant.

Other than this admission and

the plaintiffs’ short briefing of the matter in its response to the
defendant’s motion in limine, the Court has no other information on
how or why the parties feel this evidence should not or should be
admitted.

Thus, the Court will defer ruling on this matter until

the Court is provided with more information on the evidence that
the parties intend to proffer on this area of damages and why such
damages should be considered by the jury or by this Court.
C.

Damages for Annoyance and Convenience

The plaintiffs also cite Jarrett v. E.L. Harper & Son, 235
S.E.2d 362 (W. Va. 1977), for their contention that they are
entitled to damages due to annoyance and inconvenience caused by

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the

defendant’s

trespass.

This

Court’s

reading

of

Jarrett,

however, does not support the plaintiffs’ claim for damages due to
annoyance and inconvenience. In Jarrett, the West Virginia Supreme
Court stated that “[o]rdinarily, loss of use is measured by lost
profits or lost rental value.

When that standard is difficult to

apply because the property in question is not used commercially, it
may be necessary to formulate a measure of damages that is more
uniquely adapted to the plaintiffs’ injury.”

Id. at 404.

In this

case, there is a standard calculation for damages in cases such as
this and the property was being used commercially by the defendant.
Accordingly,

the

plaintiffs

are

not

entitled

to

damages

for

inconvenience and annoyance in this action and may not offer
evidence to support such damages.2
IV.

Conclusion

Based on the analysis above, the defendant’s motion in limine
to exclude plaintiffs’ testimony regarding valuation of coal mined
or use of subsurface is hereby GRANTED IN PART AS FRAMED and a
ruling is DEFERRED IN PART on the plaintiffs’ claim as to the
$300,000.00.
IT IS SO ORDERED.

2

Although both parties earlier mentioned possible recovery of
treble damages, the plaintiffs conceded at the pretrial conference
held by this Court on March 17, 2014 that they are not entitled to
treble damages. Accordingly, this Court will not discuss those
damages as they are no longer in contention.
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The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

March 19, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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