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13-1083 — Brooks v. City of Huntington

Benjamin, Justice, concurring: 

 I am pleased to join in Justice Workman’s opinion for the Court. I write 

separately merely to emphasize that a modification of the rule in Jarrett v. E. L. Harper 

& Son, Inc., 160 W. Va. 399, 235 S.E.2d 362 (1977), has become necessary in 

recognition of the singular status the law affords homesteads, insofar as limiting damages 

to market value occasionally fails to fully compensate the homeowner, particularly in less 

affluent neighborhoods. As the Court astutely points out, developers or speculators who 

are ready, willing, and able to pay market value for a desired property should not enjoy “a 

private right of inverse condemnation” in coercion of a reluctant seller.1

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 The Court correctly declines to address, for lack of a cross-appeal, the City of 

Huntington’s argument that elevating the foundations was an improvement and not a 

repair. The order on appeal, entered by the circuit court on August 29, 2013, denied the 

City’s motion for a new trial premised on the improvement argument, but granted the 

City’s motion for remittitur based on the authority of Jarrett. Importantly, the order 

expressly set forth that “This is a Final Judgment Order in this case.” The order 

disposing of the post-trial motions thereby supplanted the initial, unremitted judgment of 

March 6, 2013, entered by the circuit court on the jury’s verdict. The operative judgment 

was thus a split judgment, favorable to the homeowners to the extent that it permitted 

some recovery on their claims, but favorable to the City insofar as it did not require 

payment of the entire amount awarded by the jury. The homeowners have appealed the 

remittitur aspect of the judgment, contending that the circuit court misconstrued Jarrett. 

The City is entitled to defend the circuit court’s ruling applying Jarrett, but having not 

cross-assigned error to the adverse portion of the judgment rejecting its improvement 

argument, it has forfeited review thereof. 

(continued . . .) 

FILED 

November 25, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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 Indeed, one must wonder whether the rigid rule in Jarrett actually 

contributed to the City of Huntington’s puzzling disregard for the plight of the 

homeowners herein whose modest residences were subjected time and again to flooding 

damage.2

 Motivated in part by the City’s apparent indifference in chronically failing to 

maintain the trash rack over which it had assumed responsibility, I trust the Court’s 

decision will provide adequate notice to those who might be similarly predisposed and let 

them know that the cost for such callousness has gone up. And, of course, punitive 

damages continue to be available in an appropriate case whenever a tortfeasor progresses 

 

 To be clear, a cross-appeal is not necessary to preserve rejected alternative 

grounds that might independently have justified a judgment entered wholly in the 

respondent’s favor. See Bennett v. Spear, 520 U.S. 154, 166 (1997) (“A respondent is 

entitled . . . to defend the judgment on any ground supported by the record.” (citations 

omitted); Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982) (“It is well accepted . . . that 

without filing a cross-appeal or cross-petition, an appellee may rely upon any matter 

appearing in the record in support of the judgment below.”) (citations omitted). The 

underlying judgment does not fall within the Bennett and Blum rule, however, because it 

was not entirely in the City’s favor. The circuit court’s rejection of the City’s alternative 

basis for remittitur was not an interlocutory ruling but expressly incorporated within the 

court’s judgment. The incorporation of that adverse ruling, in conjunction with the award 

of money damages against the City, rendered a split judgment that required the City to 

cross-appeal if it wished to do more than merely defend the homeowners’ appeal on the 

grounds set forth therein. 

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 It is not readily discernible whether the prior instances of flooding had depressed 

the market value of the residences in advance of the latest flood. If that were the case, a 

strict application of the rule in Jarrett may potentially produce a particularly inequitable 

result by artificially limiting the damages attributable to subsequent floods (such as the 

one for which recovery is sought here), depending on whether the homeowners were 

compensated adequately and fairly on the previous occasions. 
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beyond run-of-the-mill callousness to evidence “‘gross fraud, malice, oppression, or 

wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting 

the rights of others.’” Perrine v. E. I. du Pont de Nemours & Co., 225 W. Va. 482, 550, 

694 S.E.2d 815, 883 (2010) (quoting syl. pt. 4, Mayer v. Frobe, 40 W. Va. 246, 22 S.E. 

58 (1895)).3

 The homeowners suffered devastating harm to their residences and to their 

neighborhood. Justice does not demand that their troubles be exacerbated by the 

imposition of an inadequate remedy. 

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 Punitive damages may not be recovered, however, against a political subdivision 

such as the City. See W. Va. Code § 29-12A-7(a) (1986).