Submitted: September 28, 1994
Filed: December 21, 1994
Thomas R. Goodwin Jeff Miller
Richard D. Owen Charleston, West Virginia
Goodwin & Goodwin Attorney for Appellee
Charleston, West Virginia Fred Van Kirk, Commissioner
Attorneys for Appellee
Joyce F. Ofsa
Trina L. Leone
Spilman, Thomas & Battle
Charleston, West Virginia
Attorneys for Appellants
JUSTICE CLECKLEY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. When interpreting a statute, this Court stated in
"'The primary object in construing a statute is to ascertain and
give effect to the intent of the Legislature.'" Syllabus of Snider
v. West Virginia Department of Commerce, 190 W. Va. 642, 441 S.E.2d
363 (1994), quoting Smith v. State Workmen's Comp. Com'r, 159 W.
Va. 108, 219 S.E.2d 361 (1975). To determine the true intent of
the legislature, courts are to examine the statute in its entirety
and not select "any single part, provision, section, sentence,
phrase or word." Syllabus Point 3, in part, Pristavec v. Westfield
Ins. Co., 184 S.E.2d 331, 400 S.E.2d 575 (1990).
2. Applying the plain language of the statute, abutting
landowners must receive preferential treatment when purchasing
state property pursuant to W. Va. Code, 17-2A-19 (1988). Under
this statutory scheme, the Commissioner has the right to decide
whether turnpike and railway property will be useful in the present
or foreseeable future. Once this decision is made, the statute
directs the Commissioner to first offer the property to the
abutting landowners for fair market value.
3. A circuit court's interpretation of W. Va. Code, 17-
2A-19, is entitled to no special deference and is subject to our
plenary and independent review. However, absent clear legislative
intent to the contrary, we do afford deference to a reasonable
construction of the statute by the Commissioner because he has policymaking authority with regard to the statute
The intervenors below and appellants, Philip Keller and
Donna J. Keller, appeal an order granting summary judgment in favor
of the plaintiff below and appellee, Roscoe Mills. This case
concerns the proper interpretation of W. Va. Code, 17-2A-19 (1988),
which provides for the disposition of certain turnpike and railroad
properties. The intervenors and Fred Van Kirk, in his official
capacity as Commissioner of the West Virginia Division of Highways
(Commissioner), the defendant below and appellee, argue that W. Va.
Code, 17-2A-19, requires abutting landowners be given a right of
first refusal of the subject property at fair market value. The
plaintiff argues, and the trial court found, that W. Va. Code, 17-
2A-19, does not require a right of first refusal and that the
Commissioner must obtain the "highest and best price" for such
Applying the plain language of the statute, we hold that
abutting landowners must receive preferential treatment when
purchasing state property pursuant to W. Va. Code, 17-2A-19. Under
the statutory scheme, the Commissioner has the right to decide
whether turnpike and railway property will be useful in the present
or foreseeable future. Once this decision is made, the statute
directs the Commissioner to first offer the property to the
abutting landowners for fair market value. Fair market value is
the price a willing party would pay for the property when there is no compulsion on any of the parties. Because we find the circuit
court's interpretation of W. Va. Code, 17-2A-19, to be incorrect,
the circuit court's order granting summary judgment in favor of the
plaintiff is reversed.
In 1992, the Commissioner determined that a portion of the former Gilmer, Ripley, and Ohio turnpike was not needed for the present or foreseeable future as a State road or hiking trail and could thus be sold pursuant to W. Va. Code, 17-2A-19. After obtaining an independent appraisal of the land, the Commissioner decided to subdivide the subject property and sell it through private sales to the abutting property owners for a total price of $55,350.
The intervenors are independent business people who own
the abutting property to the north of the subject property.
McDonald's Corporation is the owner of record of the property to
the south. The intervenors accepted the Commissioner's offer to
purchase the northern portion of the land for $20,900. McDonald's
rejected the Commissioner's offer of $34,450 for the remaining
portion of the property.
The plaintiff is not an abutting landowner. However, the
plaintiff does own the McDonald's franchise on the abutting property to the south of the subject property. For sometime prior
to the proposed sale, the Division of Highways leased the abandoned
property both to the plaintiff and to the intervenors. The
plaintiff claims that he would purchase the entire subject property
for $150,000 if it were sold at a public auction.
To prevent the sale of the subject property to the
intervenors, the plaintiff instituted an action for declaratory
judgment pursuant to W. Va. Code, 55-13-1 (1941), and for
injunctive relief against the defendant in the Circuit Court of
Kanawha County on July 6, 1992. The Division of Highways then
refused to proceed with the closing on its private sale of the
northern portion of the abandoned turnpike to the intervenors.
In an effort to protect their interest in the property,
on December 23, 1992, the intervenors filed a motion to intervene
in the declaratory judgment action instituted by the plaintiff. By
agreed order dated January 4, 1993, the intervenors' motion was
granted. On the same date, the intervenors filed a memorandum of
law in opposition to the plaintiff's motion for summary judgment.
By order dated February 4, 1993, the plaintiff's motion for summary
judgment was denied because discovery had not been completed.
Limited discovery was conducted by the parties, after
which both the plaintiff and the intervenors filed cross-motions
for summary judgment with supporting legal memoranda. The primary issue before the circuit court hinged on its interpretation of
W. Va. Code, 17-2A-19. This statute and its 1988 amendment are at
issue in this case, and neither has been interpreted by this Court.
The circuit court agreed with the plaintiff's interpretation of the statute; and, by order dated October 22, 1993, granted summary judgment in favor of the plaintiff and enjoined the Commissioner from subdividing or otherwise disposing of the property other than in its entirety at a public auction. Among other findings, the circuit court determined that the statute in question did not grant a right of first refusal to abutting property owners and that the "highest and best price" provision applied in the sale of the disputed property.
The summary judgment granted by the circuit court is now before this Court on appeal. As we recently stated in Syllabus Point 1 of Painter v. Peavy, ___ W. Va. ___, ___ S.E.2d ___ (No. 22206 11/18/94):
"A circuit court's entry of summary judgment is reviewed de novo."
Rule 56 (c) of the West Virginia Rules of Civil Procedure gives
circuit courts the discretion to grant summary judgment when a
moving party has shown that no genuine issue of material fact
exists and the party is entitled to judgment as a matter of law. At the summary judgment phase, a circuit court's primary
responsibility is "'to determine whether there is a genuine issue
for trial.'" Painter v. Peavy, ___ W. Va. at ___, ___ S.E.2d at
___ (Slip op. at 5), quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986).
Therefore, inferences from the underlying facts must be drawn in
the light most favorable to the nonmoving party. See Painter v.
Peavy, supra; Masinter v. WEBCO Co., 164 W. Va. 241, 262 S.E.2d 433
(1980); Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d
247 (1992). However, the party opposing a motion for summary
judgment must offer sufficient evidence "for a reasonable jury to
find in a nonmoving party's favor." Anderson, 477 U.S. at 252, 106
S. Ct. at 2512, 91 L.Ed.2d at 214. If the nonmoving party fails to
present satisfactory evidence showing the existence of a genuine
issue of fact and inquiry concerning the facts is not desirable to
clarify application of the law, then summary judgment is
After evaluating this case in light of the foregoing
principles, we find that the circuit court erred in granting
summary judgment in favor of the plaintiff. As will be discussed
later, the circuit court incorrectly interpreted the provisions of
W. Va. Code, 17-2A-19.
In the proceedings below, all the parties agreed that the central issue was the interpretation of the requirements of W. Va. Code, 17-2A-19.See footnote 1 The pertinent section of the Code provides for the disposition of land deemed by the defendant as "not necessary or desirable for present or presently foreseeable future state road purposes[.]"See footnote 2
The arguments of the Commissioner and intervenors are
largely consistent in that they both disagree with the plaintiff's
interpretation of the statute. Under their interpretation, the
statute requires that abutting landowners be given the right of
first refusal for the subject property at fair market value.
However, the plaintiff links himself to the phrase in the statute
that requires the Commissioner to sell the property at the "highest
and best price." This phrase, according to the plaintiff, applies
to all provisions of the statute and requires the Commissioner to
obtain the highest price not only at a public auction but at a
private sale as well. Consequently, under this theory, the right
of first refusal for abutting landowners is not a mandate, but is
merely a permissive right of the Commissioner.
When interpreting a statute, this Court stated in the
Syllabus of Snider v. West Virginia Department of Commerce, 190
W. Va. 642, 441 S.E.2d 363 (1994), quoting Smith v. State Workmen's
Comp. Com'r, 159 W. Va. 108, 219 S.E.2d 361 (1975): "'The primary
object in construing a statute is to ascertain and give effect to
the intent of the Legislature.'" To determine the true intent of
the legislature, we are to examine the statute in its entirety and not select "any single part, provision, section, sentence, phrase
or word." Syllabus Point 3, in part, Pristavec v. Westfield Ins.
Co., 184 S.E.2d 331, 400 S.E.2d 575 (1990). Courts are not free to
read into the language what is not there, but should apply the
statute as written. If the statute is "clear," if the statutory
scheme is coherent and clear, and if the law is within the
constitutional authority of the lawmaking body that passed it, then
the duty of interpretation does not arise and the rules for
ascertaining uncertain language need no discussion. Francis O. Day
Co. v. Director, D.E.P., 191 W. Va. 134, ___, 443 S.E.2d 602, 608
(1994); see also Syllabus Point 1, Williams v. West Va. Dep't of
Motor Vehicles, 187 W. Va. 406, 419 S.E.2d 474 (1992); Pristavec v.
Westfield Ins. Co., supra. Furthermore, a court may deviate from
the plain meaning of a statute only in rare cases. See State ex
rel. Frazier v. Meadows, ___ W. Va. ___, ___ S.E.2d ___ (No. 22333
12/8/94) (Slip op. at 6-7) (straying from the plain meaning of the
statute is appropriate only when "there is a clearly expressed
legislative intent to the contrary, . . . [and where] a literal
application would defeat or thwart statutory purpose . . . [or
produce] an absurd or unconstitutional result").
After examining the entire statute and applying its plain language, we find the statute in question is mandatory and prescriptive and does more than merely set out aspirational goals. The limited legislative history available and the text of the statute itself indicate the legislature was attempting to protect interests other than monetary, i.e., to give the abutting landowners the opportunity to regain lost property or the lost profits from the earlier taking of property.
To agree with the plaintiff, we would have to single out
one phrase as establishing the meaning of the entire statute. We
refuse to do so. The better way to assess legislative intent is to
review the statute in its entire and full context. We further
believe that the canons of statutory interpretation also require us
to make statutory determinations in a larger perspective,
evaluating all relevant parts of the statute rather than one
isolated provision. 2A G. Sutherland, Statutory Construction §
45.05 at 22-23 (5th ed. 1991). It is true, as the plaintiff
claims, that the statute mentions "[t]he property shall be sold in
the manner which will bring the highest and best price therefor";
but, the next paragraph of the statute, which provides a more
natural reading of what is intended, states that the Division of
Highways "may transfer, sell, or otherwise dispose of those
properties . . .[that are no longer needed] . . . by first offering
the same to the principal abutting landowners without following the
procedure for public auction hereinbefore set forth in this
Agreeing with the plaintiff, the circuit court determined
there was dichotomy between the permissive and mandatory directives
in the statute and decided that it would give "precedence to the mandate that state property be sold in the manner which would bring
the highest and best price therefore." The wisdom of the circuit
court that it is preferable to seek the highest and best price when
selling state property is unassailable; but, here, it is
legislative, not judicial, judgment that is controlling. The
circuit court unnecessarily felt the need to choose between two
mutually exclusive Code sections. There is no dichotomy in the
statute; instead, the statute provides for the disposition of
property to two different classes of individuals -- i.e. the public
in general and the abutting landowners. The presence of these two
provisions do not create a substantive inconsistency, but only a
"semantic oddity"See footnote 3 resulting from the fact that the legislature has
for convenience of reference chosen to place two entirely different
matters under the rubric of one subsection. Quite obviously, the
two characterizations are made for entirely different purposes and
there is no requirement or expectation that they coincide.
The plain language of the statute clearly gives the
Commissioner the discretion to sell the property. However, once
this decision is made, the property must first be offered to the
abutting landowners. The "highest and best price" section of the
statute refers only to the amount the Commissioner should seek in
a public auction, not in the private sale to abutting landowners
envisioned by the legislature. Undoubtedly, the legislature intended that abutting landowners circumvent the typical public
auction procedure, otherwise it would not have stated that the
property be offered to the abutting landowners "without following
the procedure for public auction hereinbefore set forth."
The legislature did not spell out the exact method for
disposing of property to abutting landowners. However, it is
obvious that preferential treatment is contemplated considering the
legislative mandate that the Commissioner not only promulgate rules
to control the sale or lease of property; but also create a
separate set of rules to "provide for granting a right of first
refusal to abutting landowners at fair market value."
The meager amount of legislative history for this Act
also supports the above interpretation. For example, the title of
this section of the statute indicates that part of the purpose of
the Act was to permit "those properties to be first sold to
abutting property owners without the necessity of public auction."See footnote 4 This, in turn, suggests that the provisions covering the sale to
abutting property owners would differ from those relating to public
auctions. Although the title is only a mere tidbit of legislative
intent, it is nonetheless a good illustration of the purposes
behind the legislation since constitutional provisions require the
title of a statute to embrace the actual object of an Act. See
W. Va. Const. art. VI, § 30; see also Syllabus Point 2, in part,
Northwestern Disposal v. West Va. PSC, 182 W. Va. 423, 388 S.E.2d
297 (1989), quoting Syllabus Point 2, State ex rel. Walton v.
Casey, 179 W. Va. 485, 370 S.E.2d 141 (1988) ("'A title must, at
minimum, furnish a "pointer" to the challenged provision in the
act'"). The title of this Act clearly "points" to the notion that
abutting landowners are singled out for preferential treatment in
The only remaining matter to address is the definition of "fair market value." We have already established that the "highest and best price" section does not control or restrict the other provisions of the statute. We find it significant that the legislature used the phrase "fair market value" in relation to sales to abutting landowners instead of requiring the Commissioner to obtain the "highest and best price" for the property in question. The plaintiff ignores the significance of the statute's structure by arguing that the fair market value of the property equals the highest amount a party is willing to pay. Under the plaintiff's theory, the broad mandate of the statute to achieve the highest and best price overrides any other definition of fair market value and his offer to pay $150,000 establishes the actual value of the property. Again, we disagree with the plaintiff's construction and find that fair market value does not necessarily equal the highest and best price.
The statute in question authorizes the Commissioner to "promulgate rules . . . granting a right of first refusal to abutting landowners at fair market value." Because this provision grants to the Commissioner the right to determine fair market value, our review of this issue is limited to determining whether the Commissioner abused his discretion in determining fair market value.
The circuit court's interpretation of W. Va. Code, 17-2A-
19, is entitled to no special deference and is subject to our
plenary and independent review. Mildred L.M. v. John O.F., ___
W. Va. ___, ___ S.E.2d ___ (No. 22037 12/8/94); Zapata Haynie Corp.
v. Barnard, 933 F.2d 256, 258 (4th Cir. 1991). However, absent
clear legislative intent to the contrary, we do afford deference to
a reasonable construction of the statute by the Commissioner because he has policymaking authority with regard to the statute.See footnote 5
Here the Commissioner's construction, as reflected in his brief, is reasonable, supported by the law, and not contrary to legislative intent. For reasons, more specifically discussed below, we defer to that interpretation; and, accordingly, we reverse the judgment entered by the circuit court.
Fair market value is a rather elusive concept. However,
the Commissioner attempted to determine the fair market value of
the subject property in an objective manner by enlisting the
services of an independent appraiser to evaluate the property. The
appraiser determined that the property was worth $55,350. The
intervenor's appraiser agreed this was an accurate appraisal.
There were no facts brought to our attention concerning the
appraisers that would make us question the actual value of the
property or the qualifications of the appraiser relied on by the
Commissioner. See Tallman v. Tallman, 190 W. Va. at 510, 515, 438
S.E.2d 853, 858 (1993) (court questioned the method of appraisal
and stated "the underlying idea is that the determination [of
property value] be made upon estimates of valuation arrived at by persons qualified to make such estimates and by persons who have
taken such steps as are reasonably necessary to arrive a fair
valuation figures"). In fact, the plaintiff is the only party to
this case that disputes the appraiser's estimate, and he does not
argue that the appraiser failed to follow standard procedures for
determining the value of property.
Although an offer for property will help in determining
the fair market value; merely quoting the offer of one interested
party is not sufficient to conclusively establish the value. See
Sexton v. Public Service Com'n, 188 W. Va. 305, 311, 423 S.E.2d
914, 920 (1992) ("[e]ven though we have held that a landowner is
competent to give an estimate of the value of his property . . . ,
we have never held that this valuation is conclusive"). Using an
objective method to establish value is a well recognized technique
for establishing fair market value. In fact, in prior cases where
the valuation of property has been relevant, we have incorporated
an objective standard into the definition of fair market value.
See West Va. Dep't of Highways v. Brumfield, 170 W. Va. 677, 679,
295 S.E.2d 917, 919 (1982), quoting Syllabus Point 5, Wheeling
Electric Company v. Gist, 154 W. Va. 69, 173 S.E.2d 336 (1970)
("the market value . . . is the price for which the land could be
sold in the market by a person desirous of selling to a person
wishing to buy, both freely exercising prudence and intelligent
judgement as to its value, and unaffected by compulsion of any
kind"); see also West Va. Dep't of Highways v. Roda, 177 W. Va. 383, 352 S.E.2d 134 (1986); Estate of Aul v. Haden, 154 W. Va. 484,
177 S.E.2d 142 (1970) (fair market value involves parties who are
willing to buy and sell when none are under compulsion); Syllabus
Point 2, Guyandot Valley Ry. Co. v. Buskirk, 57 W. Va. 417, 50 S.E.
521 (1905); Tallman v. Tallman, supra (referring to Estate of Aul
v. Haden definition of fair market value). The idiosyncratic needs
and desires of individuals cannot be allowed to inflate the fair
market value of property. As stated previously, the language and
structure of the statute suggest that the legislature used fair
market value instead of highest and best price in order to
differentiate the price that the Commissioner should obtain when
offering the property to abutting landowners as opposed to the
The Commissioner determined the fair market value in an
unbiased manner, and no evidence was produced showing the
Commissioner arbitrarily or flagrantly ignored recognized concepts
concerning property valuation or misinterpreted the statute to find
fair market value. Thus, we find the Commissioner did not abuse
his discretion in establishing the fair market value of this
For the foregoing reasons, we find that the circuit court erred in granting summary judgment. Therefore, the decision of the circuit court is reversed, and the circuit court is ordered to enter judgment consistent with this opinion.
Footnote: 1 This Code section was amended in 1994. Because the events and litigation at issue occurred prior to the amendment, the 1994 amendment is not applicable to this appeal. See State ex rel. Hamrick v. LCS Services, Inc., ___ W. Va. ___, ___ S.E.2d ___ (No. 21958 12/15/94) (new statute is presumed to operate prospectively unless legislature clearly intends otherwise).
Footnote: 2 The pertinent sections of W. Va. Code, 17-2A-19, read as follows:
"Every such sale of real property,
or any interest or right therein or structure
thereon shall be at public auction. . . .
The property shall be sold in the manner
which will bring the highest and best price
therefor. The department may reject any or
all bids received at the sale. . . .
"The commissioner may transfer, sell, or otherwise dispose of those portions of former railroad right-of-way properties owned by or to be acquired by the division of highways and those properties formerly used for turnpike roads which the commissioner in his sole discretion shall determine are not necessary or desirable for present or presently foreseeable future state road purposes by first offering the same to the principal abutting landowners without following the procedure for public auction hereinbefore set forth in this section.
"The commissioner shall adopt and promulgate rules in accordance with the provisions of . . . [W. Va. Code,] [29A-3-1 et. seq] . . . of this code governing and controlling the making of any leases or sales pursuant to the provisions of this section,
which rules may provide for the giving of preferential treatment in making leases to the persons from whom the properties or rights or interest therein were acquired, or their heirs or assign and shall also provide for granting a right of first refusal to abutting landowners at fair market value in the sale or leases of former railroad right-of-way properties and former turnpike roads owned by the department of highways[.]"
Footnote: 3 The phrase "semantic oddity" was coined by Justice Scalia in United States v. Owens, 484 U.S. 554, 563, 108 S. Ct. 838, 844, 98 L.Ed.2d 951, 960 (1988).
Footnote: 4 For the text of this title, see 1988 W. Va. Acts ch. 110 at 763, stating:
"AN ACT to amend and reenact
section nineteen, article two-a, chapter
seventeen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended,
relating generally to the authority of the
commissioner of highways with respect to the
sale, lease, exchange or lease of certain
real property acquired by the West Virginia
department of highways; sale, lease or use of
former railroad rights-of-way and those properties which were formerly used as turnpikes and in which the department of
highways has a property interest; and permitting those properties to be first sold to abutting property owners without the necessity of public auction."
Footnote: 5 Our task on review is not to decide whether another interpretation of the statute might reasonably have been reached. It is the duty of the Commissioner to interpret the statute and to promulgate rules and regulations for its enforcement. Because the Commissioner is vested with reasonable discretion in determining the intended meaning of the statute, a court may not substitute its judgment for the Commissioner's in the absence of error of law or arbitrary, oppressive, or manifest abuse of authority.