Wednesday, February 13, 2008

Up for argument later this month

One case is LEVISA COAL COMPANY v. CONSOLIDATION COAL COMPANY, out of Buchanan County, where the assignments of error are these:

1. The trial court’s ruling contradicts the holding in Clayborn v. Camilla Red Ash Coal Co., and other cases, which provides that a coal owner like Levisa owns the coal and appurtenant rights necessary to access and mine its coal, but not unrelated rights such as the right to store mine water from another’s mine.
2. The trial court erred in ruling that the 1956 Lease permits Consolidation to dump contaminated mine water into VP3 because Consolidation was not a party to the lease; Consolidation did not acquire rights under the lease; the lease itself prohibits assignment to another party; Consolidation and Island Creek are separate and distinct corporations; the 1956 Lease does not permit any party to dump contaminated mine water into VP3; and Levisa does not have the right under common law or the lease to grant anyone the right to dump contaminated mine water into VP3.
3. If the trial court found that Consolidation enjoys rights under the 1956 lease by virtue of agreements with Island Creek, that finding is erroneous because Island Creek could not, through contracts with third parties, increase its rights under the 1956 Lease; the purported agreements do not address water storage in the VP3 mine; those agreements are invalid, sham agreements between affiliated companies designed solely to circumvent the mineral owners’ rights; and Levisa is not a party to such agreements.
4. In denying Levisa’s request for injunctive relief, the trial court impermissibly relied upon matters not in evidence, including statements made by counsel for Consolidation in its opening statement and the trial court’s personal observations and opinions.
5. If the trial court found that Island Creek co-operates the Buchanan Mine with Consolidation and/or is discharging water into the VP3 mine, those findings are contrary to the evidence, which showed that Consolidation is the sole operator of the Buchanan Mine; Consolidation is the entity discharging the water; and Island Creek has no mining or other operations in Buchanan County, Virginia.
6. The trial court failed to consider and balance the parties’ equities by excluding evidence of the profitability of Consolidation’s Buchanan Mine.
7. The trial court erroneously treated Consolidation and Island Creek as the same entity with identical property and contractual rights where, according to the evidence, the defendant’s pleadings, and Virginia law, the two companies are separate and distinct entities.
8. The trial court erred in holding that Levisa requested the court to interpret the 1956 Lease; to the contrary, Consolidation raised the 1956 Lease provisions in support of its alleged right to dump water into the VP3 mine.
9. In ruling on Consolidation’s motion to strike at the close of Levisa’s evidence, the trial court impermissibly failed to view the evidence, and the inferences from that evidence, in the light most favorable to Levisa, the non-moving party.
10. The trial court erred in refusing to accept the affidavit of Timothy L. Hower into evidence because Virginia Code § 8.01-628 allows the court to consider affidavits on petitions for temporary injunctions and Mr. Hower had to be in Germany on the date of the hearing; and the trial court erred in refusing testimony about Consolidation’s profits from the Buchanan mine.
11. The trial court erred in denying injunctive relief by holding that Levisa has a full and adequate remedy at law on the basis that Levisa will be able to file suit when the coal becomes profitable to mine where (1) Levisa could be time-barred if suit is not filed within the five (5) year statute of limitations; (2) Levisa will have to prosecute a multiplicity of suits due to repeated and continuing harm from dumped mine water; (3) Virginia law provides for injunctive relief even if a plaintiff’s damages are nominal or speculative; and (4) any remedy Levisa has at law is not adequate to compensate Levisa and protect its property rights. Moreover, the court erred in imposing a requirement of “no adequate remedy at law” under the facts and law applicable to this case.
12. The trial court erred in denying injunctive relief by holding that Levisa is not suffering immediate and irreparable harm because: (1) the evidence showed that Levisa’s coal estate is being damaged; (2) the proffered affidavit of Timothy L. Hower showed that Levisa’s coalbed methane gas is being lost; (3) Consolidation is presently pumping mine water into VP3; (4) the amount of damages to Levisa’s coal cannot be accurately ascertained at this time; (5) Levisa cannot be fully and adequately compensated for its damages at law; and (6) Consolidation has destroyed Levisa’s property right to enter the passageways to inspect its coal. Moreover, the court erred in imposing a standard of irreparable harm, not recognized by this court.

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