Ruth Riffe v. William Armstrong; Deborah Nolley; Dr. Phillip Robertson; Springhaven, Inc., a West Virginia corporation; and Princeton Community Hospital, Inc., a West Virginia corporation, No. 22980 (W. Va. July 17, 1996) (Albright, J.):
Where appeal was not filed until four months after the denial of a motion for R. Civ. P. 59(e) relief from an order granting summary judgment for the remaining defendants, the Court determined such appeal to be timely filed, holding that (1) the propriety of entry of a R. Civ. P. 54(b) order will be reviewed using an abuse of discretion standard; (2) appellate review may be deferred when an appeal is presented from an order disposing of less than all claims and/or parties; (3) whether an appeal should be permitted from an order disposing of less than all claims and/or parties where R. Civ. P. 54(b) is not specifically utilized will be determined from all the circumstances and terms of the order; (4) an order disposing of less than all claims and/or parties that specifically provides that it not to be considered final and appealable will be reviewed only upon petition for writ of prohibition; and (5) an appeal from a R. Civ. P. 59(e) order may be taken at any time within the applicable appeal period.
Joan S. Lipscomb v. Tucker County Commission, No. 23122 (W. Va. July 11, 1996) (Albright, J.):
Reversing the dismissal of an appeal of a grievance from a county commission to circuit court because it was not filed within the thirty-day period provided by the Administrative Procedures Act, the Court held that the doctrine of laches, not the Administrative Procedures Act, applies to determining the timeliness of a petition for writ of certiorari from circuit court to a county commission where no period is provided by law, but any petition for writ of certiorari should not be granted if filed more than four months following the order sought to ve reviewed absent a showing of hardship or other good cause warranting an extension of time.
Sandra Gail Maples and John Maples v. West Virginia Department of Commerce, Division of Parks and Recreation, No. 23112 (W. Va. July 5, 1996) (Albright, J.):
Affirming a defense verdict in a slip-and-fall case where the primary error asserted was deemed not to have been adequately preserved at trial, the Court held that a litigant may not silently acquiesce to a trial court ruling and then allege that such ruling constitutes reversible error on appeal.
William L. Province v. Tammy M. Province and Michael L. Province and Linda D. Province v. William L. Province and Tammy M. Province, No. 22689 (W. Va. May 17, 1996) (Cleckley, J.):
Reviewing an interlocutory order entered pursuant to R. Civ. P. 54(b), the Court held that, when reviewing the propriety of such order, it must determine (1) whether the circuit court completely disposed of one or more claims and (2) whether there is "no just reason for delay."
Billie Burgess v. Mark Porterfield and State Farm Mutual Automobile Insurance Company v. SuperAmerica Group, Inc., dba SuperAmerica Corporation, No. 22956 (W. Va. March 11, 1996) (McHugh, C.J.): ___ W. Va. ___, 469 S.E.2d 114:
Affirming an award of attorney fees and costs in a first-party uninsured motorist case, the Court held that (1) findings of fact are reviewed under a clearly erroneous standard; (2) conclusions of law are reviewed under a de novo standard; and (3) the application of facts to law is reviewed under an abuse of discretion standard.
State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General v. Scott Runyan Pontiac-Buick, Inc., etc., et al., No. 22728 (W. Va. July 19, 1995) (Cleckley, J.): 194 W.Va. 770, 461 S.E.2d 516:
Where attorney general appealed R. Civ. P. 12(b)(6) dismissal of two of several defendants in consumer credit and protection action where the dismissal order failed to include the appealability language contained in R. Civ. P. 54(b), the Court nevertheless stated the exercise of appellate jurisdiction was appropriate, holding that (1) the key to determining if an order is final is not whether the language from R. Civ. P. 54(b) is included, but whether the order approximates a final order in its nature and effect, and (2) a dismissal pursuant to R. Civ. P. 12(b)(6) is appealable. On the issue of the appropriate standard of review of a R. Civ. P. 12(b)(6) dismissal, the Court held that such review is de novo.
State of West Virginia ex rel. Arrow Concrete Company, a West Virginia corporation; Arrow Industries Corporation, an Ohio corporation; and Paul Burge, Jr. v. Honorable George W. Hill, Jr., Judge of the Circuit Court of Wood County, and On Target Concrete, Inc., No. 22842 (W. Va. June 19, 1995) (McHugh, C.J.): 194 W.Va. 239, 460 S.E.2d 54:
Denying a writ of prohibition against a discovery order allegedly requiring the production of business secrets in the context of a private antitrust suit, the Court held that the denial of a motion for failure to state a claim upon which relief can be granted pursuant to R. Civ. P. 12(b)(6) is ordinarily interlocutory and not appealable.
Mary Coleman, et al. v. Irwin Sopher, No. 22592 (W. Va. June 15, 1995) (Cleckley, J.): 194 W.Va. 90, 459 S.E.2d 367:
Where, when given a choice by the trial court, the plaintiffs accepted a new trial and rejected a remittitur, the Court dismissed the appeal, holding that when a party agrees to or requests a new trial, and a new trial is granted because of the agreement or request, there is no right to appeal.
Donald C. McCormick v. Allstate Insurance Company and David Dailey, No. 22551 (W. Va. June 15, 1995) (Cleckley, J.): 194 W.Va. 82, 459 S.E.2d 359:
Where trial court responded to timely filed post-trial motions by letter, rather than by proper order, the Court dismissed the appeal, holding that a motion made pursuant to R. Civ. P. 59(a) within ten days of judgment suspends its finality and the period of appeal commences upon entry of an order disposing of the motion.
James M.B. and Lawrence E.B. v. Carolyn M. and William M., No. 22545 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 289, 456 S.E.2d 16:
Dismissing an appeal as improvidently granted where a R. Civ. P. 59(e) motion had not been ruled upon by the trial court, the Court held (1) it has an obligation to independently ascertain the basis of its jurisdiction in every case; (2) jurisdictional defects cannot be waived by the parties; (3) an appeal pursuant to W. Va. Code § 58-5-1 can be taken only from "final" decisions of a circuit court; (4) "final" decisions are those which terminate the litigation between the parties, leaving nothing but enforcement; (5) R. Civ. P. 59(e) provides the procedural mechanism for parties who wish to challenge a final judgment entered as the result of a motion to dismiss or motion for summary judgment; (6) a R. Civ. P. 59(e), sometimes misnomered a "motion for reconsideration," filed within ten days of entry of judgment, suspends the finality of such judgment and renders the case premature for appeal; and (7) when a R. Civ. P. 59(e) motion is filed, the appeal period begins to run from the date of the entry of the order disposing of the motion.
State of West Virginia v. Dawnella Rogers, No. 21516 (W. Va. July 22, 1993) (Workman, C.J.): 189 W.Va. 730, 434 S.E.2d 402:
Rejecting a defendant's attempt to secure an appeal following expiration of the appeal period while the defendant was a fugitive, the Court held that a criminal defendant does not present good cause for resentencing where the reason for failing to pursue an appeal was that the defendant voluntarily absconded from custody during the statutorily-prescribed appeal period.
Hayes Coonrod v. James B. Clark, individually and James B. Clark, d/b/a St. Albans Metal Works, Inc., and any other corporate entities solely controlled by James B. Clark, No. 21398 (W. Va. July 20, 1993) (Neely, J.): 189 W.Va. 669, 434 S.E.2d 29:
Overruling is holding in First Nat'l Bank of Bluefield v. Clark, 181 W. Va. 494, 383 S.E.2d 298 (1989), and dismissing an appeal filed outside the four-month appeal period, the Court held that for a petition for appeal to be timely presented under W. Va. Code § 58-5-4, the petition must be filed with the clerk of the circuit court within four months of the entry of judgment or within such additional period, up to two months, as may be authorized pursuant to W. Va. Code § 58-5-4.
West Virginia Department of Health and Human Services v. Warren Hess, John Mellinger, and Vicki Britner, No. 21278 (W. Va. March 16, 1993) (Miller, J.): 189 W. Va. 357, 432 S.E.2d 27:
Interpreting an unusual statute defining the term "days" for appeal purposes as "working days exclusive of Saturday, Sunday or official holidays," the Court held that, pursuant to W. Va. Code § 29-6A-2(c), an appeal of a grievance board decision must only be filed within thirty "working days" and not "calendar days." On another issue of appellate procedure, the Court held that although there is no statute relieving the State of the obligation to pay filing fees in connection with an appeal, where such fees are due, W. Va. Code § 59-1-15 requires the circuit clerk to certify the amount due to the auditor for payment.
Robert L. Lowther v. Fred Riggleman and Granville J. Zopp v. Donald H. Lowther, No. 20997 (W. Va. February 25, 1993) (Miller, J.): 189 W.Va. 68, 428 S.E.2d 49:
Where brother of partner sought priority in distribution of partnership assets, but asserted erroneous theory of recovery before trial court, the Court nevertheless reversed on appeal, holding that the doctrine of plain error is appropriate where a case is tried without a jury on a totally erroneous legal theory that was dispositive to the outcome of the case to the substantial prejudice of the appealing party.
David F. Graf, M.D. v. West Virginia University and West Virginia University Medical Corporation, No. 20722 (W. Va. December 11, 1992) (Neely, J.): 189 W. Va. 214, 429 S.E.2d 496:
Where a party relied, in part, on a per curiam opinion, in an action involving a medical school regulation which prohibited its faculty from "moonlighting," the Court held that to the extent a per curiam opinion appears to deviate from generally accepted rules of law, it has little, if any, precedential value.
Dallas Pugh v. Workers' Compensation Commissioner and Alamco, Inc., No. 21106 (W. Va. December 11, 1992) (McHugh, C.J.): 188 W.Va. 414, 424 S.E.2d 759:
Rejecting a claimant's reliance on an unpublished workers' compensation order, the Court held that its unpublished decisions have no precedential value and may not be cited in any court of this state as precedent or authority, except to support a claim of res judicata, collateral estoppel, or law of the case.
Charles W. Young v. JCR Petroleum, Inc., a foreign corporation; J.R. Barati; and Jerry L. Willey, Nos. 21010 and 21137 (W. Va. November 12, 1992), (Neely, J.): 188 W.Va. 280, 423 S.E.2d 889:
Holding improper actions taken by a trial court during the pendency of certified question proceedings, the Court held that once a question is certified, all proceedings must be stayed in the circuit court pending resolution unless unforeseeable matters of great urgency demand attention in order to avoid substantial injustice.
Joyce Triggs v. Berkeley County Board of Education, No. 20220 (W. Va. May 15, 1992) (Neely, J.): 187 W.Va. 500, 420 S.E.2d 260:
Regarding a school system's appeal rights in employment cases, the Court held that a county board of education or superintendent may appeal a grievance decision made by the superintendent's design at level two or by an independent hearing examiner at level four.
State of West Virginia v. Kennie Childers, No. 20426 (W. Va. March 5, 1992) (Miller, J.): 187 W.Va. 54, 415 S.E.2d 460:
Reversing a conviction on the basis of a defective indictment, the Court implicitly held that retrial would not be barred, holding that reversal of a criminal case on appeal does not ordinarily preclude retrial except when reversal is based upon insufficiency of the evidence.
State of West Virginia v. Melissa Walters, No. 20110 (W. Va. November 18, 1991) (McHugh, J.): 186 W.Va. 169, 411 S.E.2d 688:
Rejecting the prosecution's appeal from the dismissal of misdemeanor battery complaints, the Court held that W. Va. Code § 58-5-30 does not authorize an appeal by the State from the dismissal of a criminal complaint initially filed in magistrate court.
Cynthia R. Durm v. Heck's, Inc., a West Virginia corporation; and New River Foodland, Inc., a West Virginia corporation, No. 19791 (W. Va. February 13, 1991) (Workman, J.): 184 W.Va. 562, 401 S.E.2d 908:
Where trial court granted summary judgment to one of two defendants, the Court held an appeal from such order, which did not contain language from R. Civ. P. 54(b) to the effect that "no just reason for delay" existed and "direct[ing] . . . entry of judgment," was nevertheless not interlocutory, because the Court was able to determine from the order that the trial court's ruling approximated a final order in its nature and effect.
Retha A. Osborne v. West Virginia Human Rights Commission and Advance/Gregg Security, No. 19838 (W. Va. February 7, 1991) (Neely, J.): 184 W.Va. 584, 402 S.E.2d 253:
Where an employer failed to file exceptions to the adverse aspects of a hearing examiner's ruling, which largely held in its favor, the Court held that it was precluded from cross-assigning those adverse aspects as error on appeal.
Patricia Ann Paxton v. Paul Crabtree, Administrative Director, West Virginia Supreme Court of Appeals, State of West Virginia, Velt King, Magistrate of Clay County, No. 19615 (W. Va. December 6, 1990) (Miller, J.): 184 W.Va. 237, 400 S.E.2d 245:
Rejecting an argument that the failure to appeal a circuit court's remand order to an administrative agency barred a subsequent appeal, the Court held a remand by an intermediate appellate court is ordinarily not appealable to a higher appellate court as long as judicial action is required in the lower tribunal.
Calvin P. Fenton, et al. v. Taunja Willis Miller, et al., No. 19174 (W. Va. March 29, 1990) (Neely, C.J.): 182 W.Va. 731, 391 S.E.2d 744:
Where the trial court dissolved a preliminary injunction after an appeal from such injunction was granted, the Court reversed, holding that once the Supreme Court of Appeals assumes jurisdiction of a matter, circuit courts are without jurisdiction to enter further orders except by specific leave of the Supreme Court of Appeals.
Frank Billotti v. A.V. Dodrill, Jr., Commissioner of the West Virginia Department of Corrections, and Jerry C. Hedrick, Warden, No. 18534 (W. Va. March 9, 1990) (Brotherton, J.): 183 W.Va. 48, 394 S.E.2d 32:
Although the Court noted criminal defendants have a constitutional right to petition for appeal, including a free transcript and effective assistance of appointed counsel, it held that, even for those sentenced to terms of life imprisonment without possibility of parole, there is no constitutional right to full appellate review.