13-1083 — Brooks v. City of Huntington
                                                                             FILED
                                                                   November 25, 2014
                                                                     RORY L. PERRY II, CLERK
                                                                   SUPREME COURT OF APPEALS
                                                                       OF WEST VIRGINIA
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


       1
         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 . . .)

                                             1
              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.
       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 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.



                                             2
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.




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



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