1 13-1083 — Brooks v. City of Huntington

Benjamin, Justice, concurring: I am pleased to join in Justice Wo rkman’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 (1 977), has become necessary in recognition of the singular status the law affo rds homesteads, insofar as limiting damages to market value occasionally fails to fully co mpensate 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 va lue for a desired propert y should not enjoy “a private right of inverse condemnation” in coercion of a reluctant seller. 1

1 The Court correctly declines to address, for lack of a cross- appeal, the City of Huntington’s argument that elevating the fo undations 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 ba sed on the authority of Jarrett . Importantly, the order expressly set forth that “This is a Final Ju dgment Order in this case.” The order disposing of the post-trial mo tions thereby supplanted the initial, unremitted judgment of March 6, 2013, entered by the circuit court on the jury’s ve rdict. 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, conten ding 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 forfeit ed review thereof. (continued . . .) 

### FILED November 25, 2014

RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA2 Indeed, one must wonder whether the rigid rule in Jarrett actually contributed to the City of Huntington’s puzzling disreg ard 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 appa rent indifference in chronically failing to

maintain the trash rack over which it had assumed respon sibility, I trust the Court’s decision will provide adequate no tice to those who might be similarly predisposed and let

them know that the cost fo r such callousness has gone up. And, of course, punitive damages continue to be available in an appr opriate case whenever a tortfeasor progresses

To be clear, a cross-appeal is not nece ssary to preserve rejected alternative grounds that might independently have jus tified a judgment ente red 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 grou nd 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-petiti on, an appellee may rely upon any matter appearing in the record in support of th e 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 re jection of the City’s alternative basis for remittitur was not an interlocutory ru ling but expressly inco rporated 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 th e homeowners’ appeal on the grounds set forth therein.

2 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 attri butable to subsequent floods (such as the one for which recovery is sought here), depending on whether the homeowners were compensated adequately and fair ly on the previous occasions.3 beyond run-of-the-mill callousness to eviden ce “‘gross fraud, malic e, 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 ha rm to their residences and to their neighborhood. Justice does not demand that their troubles be exacerbated by the imposition of an inadequate remedy.

3 Punitive damages may not be recovered, however, agai nst a political subdivision such as the City. See W. Va. Code § 29- 12A-7(a) (1986).