68 results for 'court:"West Virginia Supreme Court Of Appeals"'.
J. Armstead determined the circuit court did not err when granting summary judgment in favor of a doctor and two medical institutions, who were sued by a patient for medical malpractice after he became addicted to prescription pain medications. The circuit court found the patient’s claims were barred by statutes of limitations under the West Virginia Medical Professional Liability Act. He had two years to file a complaint after submitting an intent to sue in May 2018, but did not file a completed notice of claim or certificate of merit until July 2020.
Court: West Virginia Supreme Court Of Appeals, Judge: Armstead, Filed On: November 8, 2023, Case #: 22-158, Categories: Tort, Negligence, Medical Malpractice
J. Walker reverses the lower court's order dismissing defendant's appeal of his 2019 no-contest plea to obstructing an officer from Monongalia Magistrate Court stemming from his arrest on July 31, 2019, for disrupting a West Virginia University Board of Governor's meeting. Absent certain exceptions as specified in state code, appeals from magistrate court are de novo, so the judge erred by failing to entertain the appeal and rule on the merits of the case. Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Walker , Filed On: November 7, 2023, Case #: 21-972, Categories: Criminal Procedure, Obstruction, Trespass
J. Bunn affirms the lower court's order revoking the probationer's supervised release from a 2018 sexual assault conviction, and sentencing him to two years imprisonment after he tested positive for cocaine and was charged with conspiracy to deliver crack cocaine following a traffic stop in November 2021. The trial judge did not abuse her discretion by conducting a hearing on the petition for revocation and making her own findings instead of empaneling a jury. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: November 7, 2023, Case #: 22-0197, Categories: Drug Offender, Sentencing, Sex Offender
J. Wooton reverses the lower court's order reversing the Office of Administrative Hearings' decision revoking the motorist's drivers license for five years for driving under the influence. The trial judge erred by focusing on two chemical breath tests that failed to show the presence of any alcohol or drugs in the motorist's system over the preponderance of the evidence offered by responding law enforcement officers that the motorist displayed signs of impairment and failed two field sobriety tests. Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Wooton, Filed On: November 6, 2023, Case #: 22-0223, Categories: Administrative Law, Government, Transportation
J. Hutchison reverses the lower court's final order reversing the West Virginia Public Employees Grievance Board's decision denying the two sign language interpreters' grievance, and finding they are full-time special education teachers qualified to receive a 2019 pay increase. The interpreters' grievance is mooted by the 2021 law approving teacher pay increases at the determination of the state schools superintendent, and the judge misinterpreted the Board's 2014 decision that the interpreters are classified as "professional personnel" and not "teachers." Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Hutchison, Filed On: November 6, 2023, Case #: 21-0831, Categories: Administrative Law, Education, Government
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J. Wooton reverses the lower court's order denying a Wayne County couple's petition to adopt their 11-year-old daughter, who has lived with her biological mother and step-father from when she was two-months old, based on the finding that the biological father had not abandoned the child. Not only did the biological father have the step-father's telephone number for the past 10 years and spoke with both him and the mother 10 days prior to the adoption hearing, but also "the record clearly shows that despite clearly having the ability to communicate with R.L., [he] simply opted not to do so for more than two and-a-half years." Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Wooton, Filed On: November 3, 2023, Case #: 21-0766, Categories: Evidence, Family Law
[Consolidated] J. Walker affirms the lower court's amended sentencing order following defendant's claim that the original sentence imposed following his conviction for counts of sexual abuse constituted an ex post facto violation. Defendant argued portions of the law were harsher during his 2021 trial than when we was accused of committing the acts from 1998 through 2003. Defendant cannot demonstrate how his rights were "substantially affected" by the trial judge's instructions to the jury since he committed no plain error in making them, and defendant failed to preserve an objection to those instructions since those he submitted "did not meaningfully deviate from those in the standard charge."
Court: West Virginia Supreme Court Of Appeals, Judge: Walker, Filed On: November 1, 2023, Case #: 21-0969, Categories: Ex Post Facto, Sentencing, Sex Offender
J. Bunn affirms the lower court's order sentencing the Mercer County defendant to an indeterminate term of 10-25 years in prison after pleading guilty to sexually assaulting his then-11-year-old half-sister in 2019 while he was still 17-years old. Since defendant's attorney did not address it at any of the dispositional hearings prior to sentencing and defendant failed to complete a sex offender program to determine his fitness for supervised probation, the trial judge committed no error by failing to discuss mitigating circumstances in the statute before imposing the sentence. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: October 30, 2023, Case #: 21-0904, Categories: Sentencing, Sex Offender
J. Wooton affirms the lower court's orders granting summary judgment to the state agency and Board of Osteopathy in the osteopath's suit seeking money damages. The osteopath alleged the West Virginia Bureau for Public Health breached its duty of confidentiality and defamed him by issuing a press release claiming his clinic used unsafe injection practices, while he alleged the West Virginia Board of Osteopathy failed to provide him a hearing within 15 days of its order suspending his license related to the Bureau's allegations. The osteopath's claims from his 2016 suit are barred by res judicata since they "could have been asserted and litigated" in a 2014 injunction he filed seeking a court order to halt the Board's suspension of his license. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Wooton, Filed On: October 26, 2023, Case #: 21-0902, Categories: Government, Health Care, Due Process
J. Hutchison adopts the recommendation of the disciplinary body that the Greenbrier County attorney be suspended for one year, take nine additional continuing legal education hours and pay the cost of the disciplinary proceeding. The case stems from the attorney mishandling an elderly client's retainer fee, and also continuing to represent him after he was declared a protected person and a lower court determined the attorney's concurrent representation of the elderly man's wife was a conflict of interest.
Court: West Virginia Supreme Court Of Appeals, Judge: Hutchison, Filed On: October 18, 2023, Case #: 22-0123, Categories: Administrative Law, Attorney Discipline
J. Hutchison reverses the lower court's order denying the inmate's writ of mandamus compelling the commissioner of the West Virginia Division of Corrections and Rehabilitation to adopt a policy awarding good time to inmates who perform extra assigned duties during emergencies and complete an approved academic or vocational program not part of their individualized re-entry program. The inclusion of "shall" in the final sentence of the statute at the center of the writ imposes a mandatory, non-discretionary duty on the commissioner to adopt the policy. Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Hutchison, Filed On: October 16, 2023, Case #: 22-0109, Categories: Government, Remedies, Prisoners' Rights
J. Bunn vacates the portion of the lower court's order sentencing defendant to a term of one to three years' incarceration for possession of pseudoephedrine in an altered state as part of a conditional plea agreement. The evidence provided by the prosecution failed to not only show the accused's intent to possess pseudoephedrine in an altered state, but also any acts toward committing the crime. Vacated.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: October 16, 2023, Case #: 22-0023, Categories: Drug Offender, Sentencing
J. Armstead reverses the circuit court's order affirming the Wayne County Family Court's decision awarding the ex-wife spousal support of $10,000 over 12 months. The family law judge abused his discretion by awarding the ex-wife spousal support in gross and not considering all statutory factors such as her possible need for support after the couple's remaining minor child graduates high school in June 2024. Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Armstead, Filed On: October 13, 2023, Case #: 21-0897, Categories: Civil Procedure, Family Law
J. Wooton dismisses the Board’s appeal of two lower court orders — the latter denying its motion for summary judgment — in the suit brought by the parents of George Washington High School student claiming school administrators breached their duty to protect her from a fellow student how repeatedly groped her. Since the judge did not rule on any of the immunity issues, the court finds the Board cannot identify any “error” the court may grant relief.
Court: West Virginia Supreme Court Of Appeals, Judge: Wooton, Filed On: September 29, 2023, Case #: 22-0028, Categories: Education, Government, Negligence
J. Bunn reverses the lower court's April 9, 2021, order affirming the West Virginia Division of Motor Vehicle's Office of Administrative Hearing's order revoking the Charleston man's driver's license for driving under the influence of a controlled substance. In addition to a negative blood test, the court finds OAH could not establish by a preponderance of the evidence the man was under the influence of any drugs when a Charleston police officer in the early morning of April 13, 2019, detained the man after observing him exiting his car that was parked diagonally across several spaces and while it was running, and then enter a convenience store and leave without making a purchase. Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: June 15, 2023, Case #: 21-0371, Categories: Government, Transportation, Vehicle
J. Hutchison partially grants the Randolph County Board of Education and its superintendent’s writ prohibiting enforcement of a lower court’s order denying the board’s motion to dismiss a former elementary school cook’s wrongful termination and retaliatory discharge suit on the jurisdiction and failure to state a claim grounds. The court grants the writ on the cook’s claims brought under the West Virginia Human Rights Act, since she has failed to establish a prima facie case she is a member of protected class, a prerequisite to by-pass the grievance process. Finding she has pled sufficient facts in her amended complaint, the court denies the writ on her whistleblower and First Amendment retaliation claims. Writ granted in part and denied in part.
Court: West Virginia Supreme Court Of Appeals, Judge: Hutchison, Filed On: June 15, 2023, Case #: 22-0480, Categories: Education, Employment, Whistleblowers
J. Hutchison affirms the lower court's Nov. 8, 2021, order reversing the West Virginia Division of Motor Vehicle's Office of Administrative Hearing's revocation of the Putnam County man's license for DUI following an alleged domestic dispute on Nov. 28, 2019. The court finds OAH's initial and subsequent revocations were in error since the man was charged with the crime based on the allegation of the complaining witness and his warrantless arrest for domestic battery and assault. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Hutchison , Filed On: June 15, 2023, Case #: 21-0990, Categories: Government, Transportation, Vehicle
J. Bunn affirms the lower court's March 20, 2020, and Sept. 15, 2021, orders protecting from discovery the specialty hospital employee's report on the condition of the room on Jan. 7, 2019, when the guest, during a visit to his girlfriend who was a patient, broke his femur after getting out of a recliner. The court finds no error in either the judge's order shielding the employee's report under the peer review privilege or in not directly answering the jury's questions about the potential existence of the report prior to rendering a verdict in the hospital’s favor. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: June 15, 2023, Case #: 21-0830, Categories: Health Care, Tort, Discovery
J. Walker reverses the lower court's May 20, 2022, order refusing to adjudicate an Upshur County man as a neglectful parent despite his proven history of abusing methamphetamines. The court finds the judge erred in relying on a prior decision regarding a father's testing positive for methamphetamines which is distinguishable from this case since the father "failed drug screens and admitted to abusing methamphetamine while entrusted as K.R.’s physical custodian." Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Walker , Filed On: June 15, 2023, Case #: 22-0419, Categories: Family Law, Government, Juvenile Law
J. Wooton affirms the lower court's March 3, 2021, order memorializing the jury's award to a customer's breach of contract suit against the bank for its failure in 2018 to redeem an unendorsed money market certificate of deposit originally purchased by her father in 1980 at a predecessor bank. The court finds no error in the jury's decision to deem the existence of a contract by weighing in favor of the customer's proof of the original CD against the bank's claim the account was closed in 2000 following the original bank's acquisition. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Wooton , Filed On: June 15, 2023, Case #: 21-0913, Categories: Jury, Banking / Lending, Contract
J. Bunn reverses the lower court's Nov. 19, 2021, order granting the joint motion of the mineral wool manufacturing company, one if its employees and three former members of the Jefferson County Development Authority to settle a Jefferson County activist's defamation suit, finding the judge erred by not holding an evidentiary hearing on the motion, but instead accepting the emails exchanged between the parties as proof of a binding agreement. Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: June 14, 2023, Case #: 21-1015, Categories: Environment, Government, Settlements
J. Hutchison affirms the West Virginia Environmental Quality Board's Sept. 29, 2021, ruling modifying the utility company's permit to reduce the amount of acid drainage it's allowed to inject into an abandoned underground mine. Since their factual findings were based on "reliable, probative, and substantial evidence" the court finds the Board's conclusions were "neither arbitrary nor capricious nor characterized by an abuse of discretion." Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Hutchison , Filed On: June 14, 2023, Case #: 21-0845, Categories: Environment, Government, Business Practices
J. Bunn affirms the lower court's order entered Aug. 12, 2021, finding the West Virginia Division of Motor Vehicle's Office of Administrative Hearings properly reinstated both the Berkeley County man's personal and commercial driver's licenses. The court finds DMV could not establish by a preponderance of the evidence he drove a motor vehicle under the influence of alcohol when he crashed his car into a tree in neighboring Jefferson County in the early morning of July 17, 2017, and left the scene. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: June 14, 2023, Case #: 21-0726, Categories: Government, Transportation, Vehicle
J. Walker reveres the lower court’s order granting a nursing home parent company’s motion for summary judgment in its former occupational therapist’s wrongful discharge suit following his firing for having a loaded firearm in his car parked on the premises. The court finds material questions of fact remain whether the nursing home conditioned the therapist’s employment on an agreement that he would refrain from keeping his AR-15 locked inside or locked to his car while on its parking lot in violation of the Business Liability Protection Act, a 2018 law that prohibits employers from certain specific actions against someone when that person possesses a firearm legally, including as a condition of employment.
Court: West Virginia Supreme Court Of Appeals, Judge: Walker, Filed On: June 13, 2023, Case #: 22-0094, Categories: Employment, Business Practices, Firearms
J. Bunn grants the hospital’s writ prohibiting enforcement of the lower court’s order denying the hospital’s motion to dismiss a Mingo County couple’s claims of negligence on the grounds the court lacked subject-matter jurisdiction because the couple failed to a file the required pre-suit certificate of merit under the West Virginia Medical and Professional Liability Act. The court finds the Act applies since not only did the hospital obtain the fetal remains of the couple's stillborn baby during the mother's hospitalization, but also the handling and transfer of the remains to the funeral home “was an act or service performed or furnished by a health care provider.”
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: June 12, 2023, Case #: 22-0439, Categories: Health Care, Negligence
J. Bunn, in response to the Monongalia County Circuit Court’s certified question as to whether a jury’s failure to unanimously decide the recommendation of mercy allows the court to impose the life sentence required for all first-degree murder convictions, answers “No.” The court holds in keeping with trial phase in a first-degree murder case a jury must reach a unanimous verdict and if it can’t, the court must declare a mistrial and empanel a new jury to determine mercy.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: June 12, 2023, Case #: 21-0554, Categories: Jury, Murder, Sentencing
J. Wooton grants the tribe’s writ prohibiting the lower court’s Sept. 30 order denying the tribe’s motion to transfer an abuse and neglect proceeding to its tribal court after a paternity test determined one if its members is the father of the child currently in foster care. The court finds the judge erred in relying on the “existing Indian family” exception to the Indian Child Welfare Act which applies only to a child removed from its custodial or existing Indian family or alternatively to the “good cause” exception under federal law due to the tribe’s late entry into the proceeding.
Court: West Virginia Supreme Court Of Appeals, Judge: Wooton, Filed On: June 12, 2023, Case #: 22-787, Categories: Government, Native Americans, Juvenile Law
J. Armstead affirms in part and reverses in part defendant’s seven felony convictions following his attempt to shoot an off-duty deputy sheriff who entered his property to investigate his theft of a neighbor’s trail camera. Since they are lesser included offenses to malicious assault on a law enforcement officer, the court finds his constitutional right against double jeopardy was violated when he was convicted and sentenced on the charges of brandishing and wanton endangerment. Remanded with instructions for resentencing.
Court: West Virginia Supreme Court Of Appeals, Judge: Armstead, Filed On: June 9, 2023, Case #: 21-0806, Categories: Firearms, Double Jeopardy, Obstruction
J. Bunn reveres Raleigh County man’s 2021 conviction for four felony charges stemming from a fatality that occurred during a bogus drug transaction. The lower court committed reversible error in its refusal to accept his stipulation at trial to his 2017 conviction for voluntary manslaughter which ultimately prejudiced him with the jury by permitting the state to admit evidence detailing his prior, similar offense.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: June 9, 2023, Case #: 21-0738, Categories: Firearms, Murder, Manslaughter