67 results for 'court:"West Virginia Supreme Court Of Appeals"'.
J. Hutchison reverses the Intermediate Court of Appeals' decision affirming the West Virginia Workers' Compensation Board of Review's finding that the deputy sheriff should be awarded 13% permanent partial disability for injuries to his back after lifting a bomb-detecting robot from the back of a truck. Based on evidence the deputy submitted showing he has a 25% whole person impairment with 12% apportioned impairment to a pre-existing condition, the ICA's judgment is contrary to the plain language of the statute that "requires both proof of a preexisting condition(s) and proof of 'a definitely ascertainable impairment resulting from' the preexisting condition for the disability to be apportioned.'" Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Hutchison, Filed On: April 22, 2024, Case #: 23-43, Categories: Employment, Government, Workers' Compensation
J. Hutchison affirms the lower court's order denying defendant's motion to correct its order for a six-month suspended sentence on a misdemeanor charge of joyriding in lieu of 10-days of actual jail time followed by one-year unsupervised probation to reflect time-served for good behavior. The judge did not abuse his discretion by instructing defendant to file a separate civil suit against the West Virginia Division of Corrections and Rehabilitation within three months, then denying her motion when she failed to provide notice of a suit.
Court: West Virginia Supreme Court Of Appeals, Judge: Hutchison, Filed On: April 17, 2024, Case #: 22-685, Categories: Burglary, Sentencing, Vehicle
J. Walker affirms the lower court's order granting defendant only 30 days for time served while he was on bond on a malicious wounding and wanton endangerment charge arrest. Though the judge erred by not considering the 233 days defendant spent incarcerated following revocation of his bond, the court finds the error harmless since when he was ultimately sentenced on the Raleigh County charges, the judge gave him credit for the time spent awaiting sentencing on the Fayette County charges. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Walker, Filed On: April 12, 2024, Case #: 22-759, Categories: Sentencing, Dui, Bribery
[Consolidated.] J. Wooton affirms in part, and reverses in part the lower court's orders granting the university's motion for summary judgment in the two former campus police officers' suits alleging retaliatory discharge when the university terminated their employment after they both complained of a special arrangement between it and a county magistrate to automatically dispose of criminal charges involving student athletes by sentencing them to community service, and one for filing a complaint with the West Virginia Ethics Commission against a fellow officer for his personal use of campus police vehicle. The judge erred in finding the former officers failed to establish a prima facie case of retaliation since their complaints of wrongdoing, while not in close proximity to the time of their termination, were done in "good faith" and to the "appropriate authority" and could weigh in favor to a jury that the university's stated reasons for their termination were pretextual.
Court: West Virginia Supreme Court Of Appeals, Judge: Wooton, Filed On: April 11, 2024, Case #: 22-609, Categories: Education, Employment, Whistleblowers
J. Bunn grants as moulded the widow's writ prohibiting enforcement of the lower court's order appointing a special commissioner to obtain and submit evidence regarding the administration of her late husband's estate and sell the estate’s property. The trial judge exceeded his authority following an evidentiary hearing when he granted the step-children's motion for summary judgment, accepted the special commissioner's report and ordered him to sell any of the estate's property despite ambiguity as to its valuation and ownership.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: March 26, 2024, Case #: 22-853, Categories: Civil Procedure, Wills / Probate
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J. Wooton accepts the recommendation of the Judicial Hearing Board to publicly reprimand and impose other sanctions on the Morgan County family law judge for her role in drafting a letter on behalf of the West Virginia Family Law Judicial Association in support of a now-former family law judge facing disciplinary action in 2020. Despite her lack of candor in admitting any knowledge of the letter, the court finds the recommended discipline appropriate since her role in editing it "did not arise from performance of her judicial duties and related more to personal matters than public ones."
Court: West Virginia Supreme Court Of Appeals, Judge: Wooton , Filed On: March 18, 2024, Case #: 22-862, Categories: Government, Judiciary, Sanctions
J. Armstead affirms the lower court's order granting the municipality summary judgment in the resident's suit claiming it is partially responsible for injuries she sustained from a fall when her foot was caught in wire wrapped around a pole owned by a church where the wire extended onto a defective portion of the adjacent sidewalk. The resident failed to demonstrate the city knew the wire was a hazard since there was never any prior reported problem in the 10 years since it was put there, and she had in the previous year walked along that portion of sidewalk without incident. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Armstead, Filed On: March 15, 2024, Case #: 22-625, Categories: Government, Tort, Negligence
J. Armstead reverses the lower court's order granting the state tax department's motion to dismiss the non-profit tax news publisher's suit seeking to compel the department to disclose copies of current field audit manuals, audit training manuals, and training and continuing education materials under the West Virginia Freedom of Information Act. The judge erred in accepting carte blanche the department's reliance on the section of W. Va. Code prohibiting the release of documents that disclose the standards used “for the selection of [tax] returns for examination or data used or to be used for determining such standards” without first requiring it to produce a Vaughn Index "to detail why the requested information is exempt from disclosure and identify which exemption applies." Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Armstead, Filed On: March 15, 2024, Case #: 22-491, Categories: Government, Public Record, Tax
J. Wooton reverses the lower court's Dec. 1 order granting the public library's and parks and recreation district's writ of mandamus compelling the Board to disburse funds withheld from fiscal years 2024 and 2025 from a 2018 excess levy. Since all other county boards of education can seek approval of excess levies without restrictions, the court finds the obligations to fund the library and district in the 1967 and 2011 legislative special acts violates the equal protection clause of the West Virginia Constitution. Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Wooton , Filed On: March 15, 2024, Case #: 23-691, Categories: Education, Government, Tax
J. Walker reverses the lower court's order denying the social services agency’s motion to dismiss two negligence claims from a woman's suit claiming it violated the West Virginia Child Welfare Act and Human Trafficking Statute, when the child protective services worker assigned to her case lured her into confiding in him and then supplied her with drugs and alcohol and sexually assaulted her at a hotel. The judge erred in not finding the department has qualified immunity since the woman failed either to state a claim in her amended complaint of how the department negligently violated the Child Welfare Act or identify any "bad actors" within the department who failed to properly train and supervise the worker. Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Walker, Filed On: March 5, 2024, Case #: 22-0389, Categories: Government, Immunity, Negligence
J. Bunn affirms the lower court's order dismissing the cable splicing technician's wrongful discharge suit after reporting to his supervisors suspected acts of sabotage of the telecommunication company's equipment that, due to disruption of services, constitutes a criminal offense under state law. The judge did not err in determining the technician failed to make a claim of how the reporting of his co-workers' wrongdoing violated a substantial public policy. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: November 9, 2023, Case #: 20-0040, Categories: Communications, Employment Retaliation
[Consolidated] J. Bunn vacates the lower court's order separately terminating the Wyoming County father's and mother's parental rights to their two children. It was error to adjudicate the father and mother as neglectful parents of their then-8-month-old daughter based on their silence on how they may have harmed her after an emergency room physician reported suspected bruising on her forehead when the mother sought treatment for her high fever. Also, nothing supports the judge's adjudication of the parents of abusing or neglecting their newborn son since he was removed from their custody by emergency order immediately following his birth. Vacated.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: November 9, 2023, Case #: 22-602, Categories: Evidence, Family Law, Government
J. Hutchison affirms the lower court's order sentencing defendant to 30 years in prison for second-degree murder after denying his motion for a new trial on the grounds the judge sua sponte directed the circuit clerk not to call six jurors selected from the community where the murder occurred. Despite the error to exclude the six "Bradshaw jurors" without notifying the prosecution or defense counsel, defendant received a fair trial since those who were ultimately seated were selected at random, and demonstrated no bias against him. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Hutchison, Filed On: November 9, 2023, Case #: 22-219, Categories: Fair Trial, Jury, Murder
J. Bunn reverses the lower court's order denying defendant's motion to suppress a firearm seized at his T-shirt shop at his mother's home that became the centerpiece of his January 2022 conditional guilty plea to felony possession of a firearm by a prohibited person. The judge erred in denying the motion since the deputies who responded to the residence following a 911 call regarding a dispute between the man and a neighbor had no reason to suspect a firearm was in the house or that it would be a harm to them, and defendant's generalized "agitation" about their presence is not sufficient enough to support a warrantless search. Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: November 9, 2023, Case #: 22-211, Categories: Firearms, Search
J. Bunn grants the agency's writ seeking prohibition of the former nurse's Section 1983 claim against it and one of its investigator's moving forward after the lower court denied their motion to dismiss. The judge erred in determining the agency is vicariously liable for the acts or omissions of its employees. And while the agency and its investigator are not entitled to prosecutorial immunity, the judge failed to determine if the investigator was acting within the scope of his employment to determine if the agency is entitled to qualified immunity from vicarious liability on the nurse's malicious prosecution claim. Reversed in part.
Court: West Virginia Supreme Court Of Appeals, Judge: Bunn, Filed On: November 9, 2023, Case #: 22-779, Categories: Civil Rights, Government, Health Care
J. Hutchison finds that the lower court partially erred in declaring that 54 firefighters were entitled to two years’ worth of compensation under a state law providing extra compensation for legal holidays. The city they sued incorrectly interpreted the law, which does create a fringe or wage benefit for firefighters that is protected by the Wage Payment and Collection Act, so the lower court needs to calculate how much they are owed over a five-year, not two-year, period. Affirmed in part. Reversed in part.
Court: West Virginia Supreme Court Of Appeals, Judge: Hutchison, Filed On: November 8, 2023, Case #: 22-185, Categories: Employment, Municipal Law, Damages
J. Armstead found that the lower court properly denied a motion to alter judgment. An electrical worker was injured on the job when he attempted to get around communication lines by wrapping them in shrink-wrap and was electrocuted and seriously injured. He brought a negligence action against the owners of the electrical and communication lines, but summary judgment was granted in favor of the owners. The court finds that the denial to alter judgment was correct because the worker’s actions were the sole cause of the incident and that they constitute an intervening cause. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Armstead, Filed On: November 8, 2023, Case #: 22-292, Categories: Employment, Negligence, Workers' Compensation
J. Hutchison affirms the lower court's order terminating the Hampshire County father's rights to his 16-month-old daughter. The judge did not abuse his discretion in finding the man to be a neglectful parent since paternity had not been established until an earlier petition was filed against the birth mother, and he was incarcerated at the time of the proceeding serving a sentence on two counts of possession with intent to deliver a controlled substance with a maximum term of 15 years. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Hutchison, Filed On: November 8, 2023, Case #: 22-698, Categories: Family Law, Government
J. Hutchison, upon remand from the Fourth Circuit, answers a certified question concerning how chemical exposure and latent images interact with bodily injury insurance coverage. A contracting firm was sued by former employees, who claimed they developed cancer after working amid dangerous chemicals for decades at its tank maintenance facility. Despite issuing the firm multiple personal injury policies over the period in question, the contractor’s insurer said the workers’ claims were not covered. The court found that, although the policy language was ambiguous, the insurer obligated to indemnify the contractor under the “continuous trigger theory,” which accounts for injuries that may take place over a long period of time.
Court: West Virginia Supreme Court Of Appeals, Judge: Hutchinson, Filed On: November 8, 2023, Case #: 22-848, Categories: Insurance, Contract, Workers' Compensation
J. Armstead finds that the lower court properly convicted defendant of sexual assault. Defendant appealed his conviction on the grounds that the jury was not instructed on a lesser charge of attempted sexual assault, and that he was improperly denied a mistrial. The court finds that the evidence did not support the instruction of a lesser charge, and the evidence that established defendant’s guilt weighed heavily against the denial of a mistrial. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Armstead, Filed On: November 8, 2023, Case #: 22-239, Categories: Sex Offender, Assault, Child Victims
J. Wooton reverses in part the lower court's dismissal of the mother's wrongful death suit accusing first responders of failing to provide her instructions on how to provide CPR, and of not dispatching an ambulance to her home after she found her five-week old son unresponsive. Though the mother missed the general two-year statute of limitations to file the wrongful death suit, it could still survive under the minority tolling provision of the Government Tort Claims and Insurance Reform Act or the discovery rule. Reversed in part.
Court: West Virginia Supreme Court Of Appeals, Judge: Wooton, Filed On: November 8, 2023, Case #: 22-202, Categories: Government, Wrongful Death, Discovery
J. Walker vacates the lower court's orders terminating the rights of the Kanawha County father to his four children. The judge erred by not following the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes to make specific findings for disposition of each child and as to whether the father has been given an opportunity to correct the conditions that created their abuse and neglect. Vacated.
Court: West Virginia Supreme Court Of Appeals, Judge: Walker, Filed On: November 8, 2023, Case #: 22-623, Categories: Family Law, Government
J. Walker finds that the Workers’ Compensation Board of Review properly denied a medical supplies deliverer’s application for workers’ compensation after he sprained his knee while descending a short set of stairs during a delivery. He was injured while working, but could not show that his work caused the injury, notably because he did not slip, trip or fall, and had not been carrying supplies when the injury happened; he had already dropped off the delivery. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Walker, Filed On: November 8, 2023, Case #: 21-754, Categories: Tort, Premises Liability, Workers' Compensation
J. Walker affirms the lower court's orders dismissing the Hampshire County Sheriff deputy's 2019 civil suit accusing a West Virginia state trooper and two county prosecutors of conspiring to prosecute him in 2017 on charges of domestic assault and domestic battery on which he was later acquitted. There is no error in the suit's dismissal since prosecutors have absolute immunity in civil cases, and the deputy's claims against the trooper for civil conspiracy and abuse of process have no support beyond his claim for malicious prosecution. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Walker, Filed On: November 8, 2023, Case #: 22-0111, Categories: Government, Malicious Prosecution, Immunity
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
[Consolidated.] J. Wooton dismisses the Nicholas County mother's appeal of the lower court's order denying her motion for post-termination visitation of her infant daughter and affirms the court's order terminating the father's parental rights. Since there are still issues not yet ripe for adjudication, the court lacks subject-matter jurisdiction to hear the mother's appeal. Based on the judge's "very detailed and well-supported" dispositional order, there is no likelihood the conditions the father created that led to his daughter's abuse and neglect could be substantially corrected. Affirmed.
Court: West Virginia Supreme Court Of Appeals, Judge: Wooton, Filed On: November 8, 2023, Case #: 22-733, Categories: Family Law, Government
J. Armstead finds that the circuit court erred in affirming the grievance board’s decision restoring two separate bus routes an employee drove for the board of education. The bus driver, who worked for the district since 1980, complained after the board determined a second vocational bus route was improperly awarded to her via contract in 1985. The vocational route contract was illegal because it conflicted with the driver’s primary route contract, which was never modified to account for a change in destinations or an overlapping schedule. The circuit court erred by accepting the grievance and concluding the board had no duty to correct the mistake, in spite of its significance. Reversed.
Court: West Virginia Supreme Court Of Appeals, Judge: Armstead, Filed On: November 8, 2023, Case #: 22-234, Categories: Education, Employment, Contract
J. Walker answers the certified question from the Kanawha County Circuit Court, "Whether parties who are dismissed from an action brought under the Medical Professional Liability Act (MPLA), but who did not settle their claims with the plaintiff may be considered by the jury in apportioning fault under West Virginia Code § 55-7B-9(b) (2016)?" The judge reformulates the question "whether a healthcare provider who was named in the complaint but voluntarily dismissed as a party is an 'alleged party' for purposes of West Virginia Code § 55-7B-9(b)?" and answers in the affirmative.
Court: West Virginia Supreme Court Of Appeals, Judge: Walker, Filed On: November 8, 2023, Case #: 22-567, Categories: Civil Procedure, Health Care, 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