Dominion Energy Transmission, Inc. v. 3.71 Acres, More or Less, in Doddridge County, West Virginia et al
Filing
137
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 129 ]. The Court GRANTS Dominion's unopposed motion for summary judgment (Dkt. No. 129 ); and DIRECTS Dominion to pay $519.28 to the De fendants, plus prejudgment interest on this amount at the rate of 2.17% per annum. The Court further DIRECTS Dominion to provide copies of both Orders to the Defendants and file proof of service with the Court. Signed by Senior Judge Irene M. Keeley on 1/10/2020. (wrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DOMINION ENERGY TRANSMISSION, INC.,
Plaintiff,
v.
CIVIL ACTION NO. 1:18CV26
(Judge Keeley)
3.71 ACRES OF LAND, MORE OR LESS, IN
DODDRIDGE COUNTY, WEST VIRGINIA, ET AL.,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 129]
The
plaintiff,
(“Dominion”),
Dominion
previously
Energy
obtained
Transmission,
immediate
access
to
Inc.
and
possession of certain temporary and permanent easements that it
had
sought
to
condemn
in
order
to
construct
a
natural
gas
pipeline (Dkt. No. 44). Dominion has moved for summary judgment
as to the amount of just compensation due for the portions of
this property owned by the remaining defendants, including Gary
Lester Batton; Roland D. Batton; Martin E. Williams; Walt Ann
Jacobson; Dessie M. Cochran; Lynda L. Hankins; Debra S. Wagner;
William Jackson Curran, II; Shawn Curran; Lynda J. Curran; Henry
E.
Norwood;
the
Unknown
Heirs,
Successors,
and
Assigns
of
Stephen L. Yerkey; the Unknown Heirs, Successors, and Assigns of
Virgil Dale Williams; and Any Unknown Owners (collectively, “the
Defendants”) (Dkt. No. 129). For the reasons that follow, the
Court GRANTS the unopposed motion (Dkt. No. 129).
DOMINION V. 3.71 ACRES, ET AL.
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 129]
I. BACKGROUND1
On
October
Commission
13,
(“FERC”)
2017,
the
granted
Federal
a
Energy
Certificate
Regulatory
to
Dominion
authorizing construction of 37.5 miles of natural-gas pipeline
in West Virginia (“the Project”) (Dkt. No. 1-2 at 7).2
On
February
5,
2018,
Dominion
sought
to
exercise
that
authority over certain property located in the Northern District
of
West
Virginia
that
it
had
been
unable
to
acquire
by
agreement. It did so by filing a complaint pursuant to the NGA
and Fed. R. Civ. P. 71.1 (Dkt. No. 1). As required by Rule
71.1(c)(2), Dominion included a description of the property, as
well as the interests to be taken (Dkt. Nos. 1 at 6-9; 1-4).
On
February
6,
2018,
Dominion
sought
partial
summary
judgment as to its right to condemn the subject property (Dkt.
No. 3). It also sought a preliminary injunction allowing it to
possess the easements (Dkt. No. 4). After the Court conducted an
evidentiary hearing, it granted Dominion’s motion for order of
1
As it must, the Court recites the facts in the light most
favorable to the non-moving parties. See Providence Square
Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.
2000).
2
Citations to the FERC Certificate reference pagination of the
FERC Certificate itself rather than CM/ECF pagination.
2
DOMINION V. 3.71 ACRES, ET AL.
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 129]
condemnation and for preliminary injunction on March 2, 2018,
thereby
authorizing
Dominion
to
condemn
and
obtain
immediate
access to and possession of the subject property (Dkt. No. 44).
On April 2, 2019, Dominion moved for summary judgment on the
remaining
issue
of
just
compensation
owed
to
the
Defendants
(Dkt. Nos. 129, 130). Despite being served a Roseboro Notice
(Dkt. Nos. 132, 133, 134, 135, 136), the Defendants have not
responded to Dominion’s motion. Accordingly, Dominion’s motion
is ripe for disposition.3
II. STANDARD OF REVIEW
Summary
judgment
is
appropriate
only
“if
the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
3
Although Dominion’s motion for summary judgment is unopposed,
the Court is nevertheless required to thoroughly analyze the
issue of just compensation. Robinson v. Wix Filtration Corp.,
599 F.3d 403, 409 n.8 (4th Cir. 2010) (“[I]n considering a
motion for summary judgment, the district court ‘must review the
motion, even if unopposed, and determine from what it has before
it whether the moving party is entitled to summary judgment as
a matter of law.’” (emphasis in original) (quoting Custer v. Pan
Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993))).
3
DOMINION V. 3.71 ACRES, ET AL.
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 129]
56(c). When ruling on a motion for summary judgment, the Court
reviews all the evidence “in the light most favorable” to the
nonmoving party. Providence Square, 211 F.3d at 850. The Court
must avoid weighing the evidence or determining its truth and
limit its inquiry solely to a determination of whether genuine
issues of triable fact exist. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court
of
the
nonexistence
basis
of
for
genuine
the
motion
issues
and
of
of
fact.
establishing
Celotex
Corp.
the
v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party has
made the necessary showing, the non-moving party “must set forth
specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256 (internal quotation marks and citation
omitted).
favoring
summary
The
the
“mere
existence
non-moving
judgment;
the
party
of
will
evidence
must
a
scintilla
not
be
prevent
such
of
evidence”
the
entry
that
a
of
rational
trier of fact could reasonably find for the nonmoving party. Id.
at 248–52.
III. DISCUSSION
The question at issue is the amount of just compensation due
4
DOMINION V. 3.71 ACRES, ET AL.
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 129]
to the Defendants for their respective interests in the property
taken by Dominion (Dkt. No. 130 at 1-2).
“‘Just compensation’ is that amount of money necessary to
put a landowner in as good a pecuniary position, but no better,
as if his property had not been taken.” United States v. 69.1
Acres of Land, More or Less, Situated in Platt Springs Twp.,
Cty. of Lexington, State of S.C., 942 F.2d 290, 292 (4th Cir.
1991). “[I]t is well settled that in the event of a ‘partial
taking’ – i.e., a case in which the [condemnor] has taken one
part of a larger tract, leaving the remainder to the landowner
– the measure of just compensation is the difference between the
fair and reasonable market value of the land immediately before
the
taking
portion
and
that
the
fair
remains
and
after
reasonable
the
market
taking.”
value
United
of
States
the
v.
Banisadr Bldg. Joint Venture, 65 F.3d 374, 378 (4th Cir. 1995).
When a taking is temporary in nature, because it involves a
temporary work space, “the value of the taking is what rental
the
marketplace
would
have
yielded
for
the
property
taken.”
Banisadr Bldg. Joint Venture, 65 F.3d at 378.
Generally, “the property owners bear the burden of proving
the fair market value at trial.” Hardy Storage Co., LLC v. Prop.
5
DOMINION V. 3.71 ACRES, ET AL.
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 129]
Interests
Necessary
to
Conduct
Gas
Storage
Operations,
No.
2:07-cv-5, 2009 WL 689054, at *3 (N.D. W. Va. Mar. 9, 2009)
(citing United States ex rel. and for Use of Tenn. Valley Auth.
v. Powelson, 319 U.S. 273–74 (1943)). However,
[i]f the condemnor is the only party to
admit evidence to the Court of the value of
the real property taken, the Court may use
that
evidence
to
determine
the
just
compensation of the property and enter
default
judgment
against
defendant
landowners and award the defendants their
just compensation as determined by the
condemnor.
Atl. Coast Pipeline, LLC v. 1.52 Acres, No. 3:17-cv-814, 2019 WL
148402, at *7 (E.D. Va. Jan. 9, 2019). So too here. Because the
Defendants have not appeared, answered, or otherwise defended
this case, the Court may consider Dominion’s undisputed evidence
in order to determine just compensation. Id.
A.
Just Compensation for the Defendants
According
to
Dominion’s
expert
and
certified
appraiser,
Wesley D. Woods (“Woods”), the property at issue is comprised of
50.00 total acres of land (Dkt. No. 130-1 at 3). This tract is
encumbered by a permanent pipeline easement totaling 1.49 acres
and a temporary workspace easement totaling 2.05 acres. Id. As
of the date of the taking, February 5, 2018, Woods determined
6
DOMINION V. 3.71 ACRES, ET AL.
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 129]
that the total value of the permanent pipeline easement was
$1,453.00, and the total rental value of the temporary easement
was $1,333.00, for a total value of $2,786.00. Id.
Because the Defendants own only a 0.1863903586% interest in
the underlying property, they are entitled to 0.1863903586% of
$2,786.00, or $519.28 (0.1863903586 X $2,786.00 = $519.28).4
B.
Prejudgment Interest
The Defendants are also entitled to prejudgment interest on
the amount of just compensation from the date of the taking,
February 5, 2018, to the date of the judgment, January 10, 2020.
See United States v. Eltzroth, 124 F.3d 632, 638 (4th Cir. 1997)
(“The date of taking ‘fixes the date as of which the land is to
be
valued
accrues.’”
and
the
(quoting
Government’s
United
States
obligation
v.
Dow,
to
357
pay
U.S.
interest
17,
22
(1958))).
4
The Court declines Dominion’s request to award the Defendants
only nominal damages (Dkt. No. 130 at 7) because there is no
evidence to suggest that the temporary and permanent easements
here involve vacant and abandoned property. See Columbia Gas.
Transm., LLC v. An Easement to Construct, Operate and Maintain
a 20-inch Gas Transm. Pipeline Across Props. in Allegheny Cty.
Pa, No. 17-1191, 2018 WL 348844, at *6 (W.D. Pa. Jan. 10, 2018)
(finding
nominal damages appropriate “where the easements
[were] . . . minimal [in] size and scope and over vacant and
abandoned property”).
7
DOMINION V. 3.71 ACRES, ET AL.
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 129]
Federal law leaves to the Court’s discretion the appropriate
procedure
to
determine
what
rate
of
interest
applies.
See
Washington Metro. Area Transit Auth. v. One Parcel of Land in
Montgomery Co., Md., 706 F.2d 1312, 1322 (4th Cir. 1983) (“The
choice of an appropriate rate of interest is a question of fact,
to be determined by the district court . . . .”). Judges in the
District have previously observed that, “in order to make the
injured parties whole, the prejudgment interest should reflect
the injured party’s borrowing costs.” Dijkstra v. Carenbauer,
No. 5:11-CV-152, 2015 WL 12750449, at *7 (N.D. W. Va. July 29,
2015) (Bailey, J.) (quoting Zerkel v. Trinity Resources, Inc.,
2013 WL 3187077, at *2 (N.D. W. Va. June 20, 2013) (Stamp, J.)).
Applying
interest
is
this
to
principle,
be
the
calculated
rate
should
at
which
reflect
prejudgment
the
rate
best
representing the Defendants’ borrowing cost during the period of
the loss of use of the monies owed. To determine this, the Court
will apply the average federal interest rate from February 2018.
During
that
time,
interest-bearing
Average
the
federal
debt
Interest
interest
averaged
2.17%.
Rates,
rates
for
marketable
TreasuryDirect.gov,
February
2018
https://www.treasurydirect.gov/govt/rates/pd/avg/2018/2018_02.
8
DOMINION V. 3.71 ACRES, ET AL.
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 129]
htm (last visited Jan. 10, 2020). Accordingly, the Court will
award prejudgment interest on the amount of just compensation,
from February 5, 2018, to January 10, 2020, to be calculated at
the rate of 2.17% per annum.
IV. CONCLUSION
For the reasons discussed, the Court:
•
GRANTS
Dominion’s
unopposed
motion
for
summary
judgment (Dkt. No. 129); and
•
DIRECTS
Dominion
to
pay
$519.28
to
the
Defendants,
plus prejudgment interest on this amount at the rate
of 2.17% per annum.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and enter a separate judgment order in
favor of Dominion. It further DIRECTS Dominion to provide copies
of both Orders to the Defendants and file proof of service with
the Court.
DATED: January 10, 2020
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
9
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