__________________________________________________________________
Thomas V. Flaherty, Esq.
Flaherty, Sensabaugh & Bonasso, PLLC
Charleston, West Virginia
and
Charles L. Woody, Esq.
Dennise R. Smith-Kastick, Esq.
Spilman Thomas & Battle, PLLC
Charleston, West Virginia
and
Diana Everett, Esq.
Daniel A. Ruley, Esq.
Steptoe & Johnson, PLLC
Parkersburg, West Virginia
and
Charles G. Cole, Esq.
Steptoe & Johnson, LLP
Washington, DC
Attorneys for Petitioner
Larry A. Winter, Esq.
Winter Johnson & Hill PLLC
Charleston, West Virginia
and
R. Edison Hill, Esq.
Harry G. Deitzler, Esq.
Hill, Peterson, Carper, Bee & Deitzler, PLLC
Charleston, West Virginia
and
Gerald J. Rapien, Esq.
Robert A. Bilott, Esq.
Taft, Stettinius & Hollister LLP
Cincinnati, Ohio
Attorneys for Respondents
JUSTICE MAYNARD delivered the Opinion of the Court.
JUSTICE McGRAW dissents and reserves the right to file a dissenting opinion.
1. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
2. “'“In reviewing the exceptions to the findings of fact and conclusions of law supporting the granting of a temporary or preliminary injunction, we will apply a three-pronged deferential standard of review. We review the final order granting the temporary injunction and the ultimate disposition under an abuse of discretion standard, West v. National Mines Corp., 168 W.Va. 578, 590, 285 S.E.2d 670, 678 (1981), we review the circuit court's underlying factual findings under a clearly erroneous standard, and we review questions of law de novo.” Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).' Syl. pt. 1, State v. Imperial Marketing, 196 W.Va. 346, 472 S.E.2d 792 (1996).” Syllabus Point 1, Camden-Clark Memorial Hosp. Corp. v. Turner, 212 W.Va. 752, 575 S.E.2d 362 (2002) .
3. Pursuant to West Virginia Rule of Civil Procedure 65(a)(1), no
preliminary injunction shall issue without notice to the adverse party. A preliminary
injunction which is ordered without notice to the adverse party is void. Notice necessarily
implies that the opposing party be provided a fair opportunity to oppose the application and
to prepare for such opposition.
Maynard, Justice:
The petitioner, E.I. duPont de Nemours and Company (“duPont”), invokes this
Court's original jurisdiction seeking a writ of prohibition in case number 31428 to enjoin
Judge George W. Hill from enforcing the court's order which was entered on May 1, 2003.
The order granted injunctive relief to the plaintiffs by requiring duPont to provide C-8 blood
testing for all members of the class. In case number 31429, duPont requests that Judge Hill
be prohibited from proceeding further in this case until he certifies the disqualification
motion to the Chief Justice of this Court, or, in the alternative, that the judge be prohibited
from further participating in the case. We consolidated these cases for consideration in this
Court. Because duPont was not afforded notice in case number 31428, we grant the writ of
prohibition as requested. In case number 31429, the Chief Justice will take the
disqualification motion under advisement.
The facts of these consolidated cases are intertwined. In August 2001, the
respondents, thirteen named plaintiffs (“plaintiffs”), brought this class action lawsuit on
behalf of all residents situated in the mid-Ohio valley region. The plaintiffs allege they have
suffered harm which is attributable to the presence of ammonium perfluoroctanoate, a
detergent-like material more commonly known as C-8, APFO, or PFOA, in their drinking
water. DuPont's Washington Works Plant, located in Wood County, West Virginia, utilizes
C-8 in the manufacture of fluoropolymers, such as Teflon®. The plaintiffs originally brought
this class action lawsuit against duPont and the Lubeck Public Service District,
(See footnote 1)
asserting
various statutory and common law claims, including trespass, battery, nuisance, negligence,
fraud, and violation of the West Virginia Consumer Protection Act. The plaintiffs seek relief
in the form of abatement, compensatory damages, punitive damages, and medical monitoring.
On April 10, 2002, Judge Hill certified the class under West Virginia Rule of
Civil Procedure 23.
(See footnote 2)
The “class” is defined as individuals in West Virginia and Ohio “whose
drinking water is or has been contaminated with ammonium perfluoroctanoate (a/k/a 'C-8')
attributable to releases from DuPont's Washington Works plant[.]” In a subsequent hearing,
“contamination” was defined by the judge as “quantifiable levels” rather than “detectable
levels.”
(See footnote 3)
In that same hearing, Judge Hill determined that “[t]he people of Parkersburg are
not within that definition[]” because the level of C-8 in the Parkersburg water supply is
detectable but not quantifiable.
On October 10, 2002, while discovery was ongoing, Judge Hill notified the
parties that he would temporarily recuse himself from the case because he had retained
Lubeck's counsel, Richard Hayhurst, to represent him in an unrelated civil action. For
approximately five months, discovery proceeded without judicial supervision. Then, on
March 4, 2003, duPont was informed by Mr. Hayhurst that he was going to terminate his
representation of Judge Hill and that the judge would resume his administration of the case
on April 18, 2003.
The next hearing in the case was held on April 18, 2003. The parties were
prepared on that date to address two pending motions: (1) a motion for partial summary
judgment against duPont on liability for plaintiffs' medical monitoring claims and (2) a
motion for sanctions submitted by the plaintiffs based upon an alleged violation of discovery
obligations relating to e-mails. The plaintiffs did not file a written request seeking an
injunction and did not move for an injunction prior to the hearing. During the hearing, the
motion for partial summary judgment was denied. Thereafter, the plaintiffs moved for
injunctive relief by arguing that duPont was making improvements to reduce emissions
which might produce lower results if testing was delayed. They argued that “this Court has
the authority through injunctive powers to order this testing whether there is an issue on
whether the Bower elements
(See footnote 4)
have been met or not and do it as injunctive relief.” The
plaintiffs asked the circuit court to require duPont to make blood testing “available to
everybody in the class exposed.”
(See footnote 5)
Judge Hill ultimately accepted the plaintiffs' argument and ordered the
requested blood testing but, at the same time, invited duPont to appeal his decision. The
judge verbalized his decision in the following manner: “I could order this monitoring, testing
to begin, and then you could have an expedited appeal to the Supreme Court of Appeals to
see if that judgment was right. That would be the shortcut. We'd get to the testing. I would
defer the implementation of that _ of it so you could seek the expedited appeal.” The judge
ruled first that duPont must test the class representatives, but later changed his mind and
ruled that duPont must test “all of the folks in the community who have been exposed[.]”
The order which memorializes the court's ruling states that implementation of the order is
stayed for thirty days “to allow the parties to confer regarding submission to the Court of an
agreed order, . . . or, in the event the parties fail to reach agreement upon implementation of
this Order, to allow DuPont to file an appeal[.]” Thus, the order in case number 31428 is
stayed by its own terms pending resolution of this petition.
The issue in case number 31429 is whether Judge Hill should be prohibited
from acting further in this case until he refers the motion for disqualification to the Chief
Justice of this Court. DuPont insists that a writ is necessary because Judge Hill refuses to
comply with the procedures and standards which govern judicial disqualification.
(See footnote 6)
The
circuit court addressed the disqualification motion during a hearing held on May 29, 2003.
During that hearing, the question arose regarding whether people who consume water in the
city of Parkersburg are members of the class. Judge Hill resides in Parkersburg. The
question arose because duPont's counsel interpreted the court's certification order to mean
“that every man, woman and child who consumed any amount at any time of water
containing C-8 which came from the Washington Works Plant is a member of the class.”
Counsel reminded the judge that the order, by definition, makes the judge a member of the
class. The judge responded by stating that the order can be amended. Judge Hill insisted that
the class need not be recertified, but rather the extent of the class could simply be amended.
Ultimately, the court ruled that those who consume water which contains detectable but
nonquantifiable amounts of C-8 are not members of the class.
During the ensuing discussion, Judge Hill specifically stated, “I don't need to be in this class, and I don't want to be in this class frankly.” The judge subsequently determined that if he has an interest in the outcome of the case, he could waive or release that right and thereby avoid the disqualification motion. Judge Hill reasoned:
And I think there are two reasons why I don't think I'm
disqualified. And one is I don't think I have an interest because
it's de minimis. And, two, if I waive it, I would not be allowed,
I would not under any circumstances be permitted to participate.
I've talked to my children and their spouses, and they're
perfectly willing to waive their rights, too.
As far as my wife is concerned, we're _ I don't know her
attitude, but I know her general attitude. And I don't think
she'll sign anything like that.
. . . .
And I don't know yet whether she'll sign. She may sign
a waiver, too.
The plaintiffs proceeded to argue that no evidence had been presented which
would show “that the Parkersburg water supply has any more than a detectable but
nonquantifiable amount of C-8.” Therefore, the plaintiffs concluded that Judge Hill was not
a member of the class and duPont's motion had no merit. In the end, the judge denied the
disqualification motion and stated that he would “proceed with the case unless told to do
otherwise by . . . the Supreme Court.”
In its petition filed in this Court, duPont contends that the circuit court
exceeded its jurisdiction by refusing to comply with the procedures which govern
disqualification of a circuit judge. Moreover, duPont avers that Judge Hill is disqualified
from the case because he and his family members are residents of Parkersburg whose water
supply arguably meets the definition of the class certified by the court. In that respect, the
judge and his family have economic and noneconomic interests in the outcome of the
litigation. DuPont contends that the judge exceeded his authority by redefining the class and
by attempting to waive his interest in order to retain the case.
The plaintiffs respond that Judge Hill should not be removed from the case
because duPont waited to file its motion to disqualify less than seven days before a scheduled
hearing took place on May 29, 2003. Therefore, West Virginia Trial Court Rule 17.01
(See footnote 7)
expressly conferred jurisdiction on the circuit court to consider and resolve the motion in
accordance with the procedure followed by the court during the hearing. Furthermore, the
plaintiffs contend that neither the judge nor his family members belong in the class which has
been certified by the court because their public drinking water system is not contaminated
with C-8. But, even if the judge and his family share an interest with the plaintiff class
members, the plaintiffs contend that duPont failed to offer any evidence which would show
that the alleged interest is more than de minimis. As a result, under Canon 3E(1) of the Code
of Judicial Conduct, Judge Hill is not disqualified. Besides, even if the judge's interest is
more than de minimis, no problem exists because any possibility of a potential conflict has
been fully waived.
On June 25, 2003, this Court issued a rule to show cause directing the plaintiffs
to show why a writ should not be awarded against Judge Hill. It was determined at that time
that if the circuit court forwarded the motion for disqualification pursuant to Rule 17.01, the
Chief Justice would rule on the motion. We will discuss the propriety of the injunction and
the disqualification of the judge in turn.
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction but
only where it is claimed that the lower tribunal exceeded its
legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means,
such as direct appeal, to obtain the desired relief; (2) whether the
petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is
clearly erroneous as a matter of law; (4) whether the lower
tribunal's order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5)
whether the lower tribunal's order raises new and important
problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear
that the third factor, the existence of clear error as a matter of
law, should be given substantial weight.
Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
Upon careful consideration of the filings, pleadings, and
argument of the parties in the context of applicable West
Virginia medical monitoring law as set forth in Bower and the
applicable standards for summary judgment under Rule 56 of the
West Virginia Rules of Civil Procedure, the court CONCLUDES that there is a material question of fact in
dispute with respect to the issue of whether the Class has been
significantly exposed to C-8 sufficient to prove Plaintiffs'
medical monitoring claims, thereby precluding summary
judgment in Plaintiffs' favor on that issue.
Upon further consideration and balancing of all of the
circumstances of this case, including the nature of the
controversy, the object for which an injunction is being sought,
and the comparative hardship or inconvenience to the respective
parties involved, according to the standards for granting
injunctive relief referenced by the West Virginia Supreme Court
of Appeals in Camden-Clark and under Rule 65 of the West
Virginia Rules of Civil Procedure, the Court further
CONCLUDES that injunctive relief is appropriate to require
DuPont to make available and pay for the C-8 blood testing that
DuPont insists is essential to prove a material issue of fact in
dispute on Plaintiffs' medical monitoring claims.
DuPont argues that in this instance, the judge exceeded his legitimate jurisdiction by ordering
injunctive relief.
Our standard for reviewing the correctness of preliminary injunctions reads as
follows:
“'In reviewing the exceptions to the findings of fact and
conclusions of law supporting the granting of a temporary or
preliminary injunction, we will apply a three-pronged deferential
standard of review. We review the final order granting the
temporary injunction and the ultimate disposition under an abuse
of discretion standard, West v. National Mines Corp., 168 W.Va.
578, 590, 285 S.E.2d 670, 678 (1981), we review the circuit
court's underlying factual findings under a clearly erroneous
standard, and we review questions of law de novo.' Syllabus
Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114
(1996).” Syl. pt. 1, State v. Imperial Marketing, 196 W.Va. 346,
472 S.E.2d 792 (1996).
Syllabus Point 1, Camden-Clark Memorial Hosp. Corp. v. Turner, 212 W.Va. 752, 575
S.E.2d 362 (2002) . Rule 65 of the West Virginia Rules of Civil Procedure sets forth the
procedure circuit courts must follow when granting injunctions. Of particular importance
to this case is Rule 65(a)(1) which unequivocally states, “No preliminary injunction shall be
issued without notice to the adverse party.”
The circuit court does not
mention the notice requirement in any context. After the plaintiffs moved for
injunctive relief during the hearing, discussion followed regarding whether
the medical monitoring elements had been met. Once it was determined that the
elements were not satisfied, the court immediately granted injunctive relief
with no discussion whatsoever regarding notice. The court likewise omits discussion
of the notice requirement in its May 1, 2003 order. Instead, in its order,
the court applies the Camden-Clark balancing test
(See footnote 8)
and concludes that injunctive relief is appropriate.
In their response filed in this Court, the plaintiffs assert that notice was
properly given to duPont because they included “claims for various forms of equitable and
injunctive relief” in their initial complaint. They admit that the motion seeking injunctive
relief was made ore tenus during the summary judgment hearing. Nonetheless, they advance
the premise that the circuit court did not err by granting the injunction because they sought
relief “to prevent the imminent loss of the very same C-8 blood evidence that DuPont insisted
was necessary to resolve this key fact issue[]” and because duPont did not object. We
believe these rationalizations are inadequate attempts to sidestep the plain requirements of
the rule.
The rule makes it very clear that notice is mandatory. This is more fully explained by the authors of the handbook on West Virginia Civil Procedure:
It is a prerequisite under Rule 65(a)(1) that the opposing
party receive notice of a request for a preliminary injunction. A
preliminary injunction ordered without notice to the opposing
party is void. It has been held that “[t]he notice required by
Rule 65(a)(1) before a preliminary injunction can issue implies
a hearing in which the defendant is given a fair opportunity to
oppose the application and to prepare for such opposition.
Moreover, the party requesting a preliminary injunction is
entitled to a fair opportunity to present evidence on the issue.
Franklin D. Cleckley, Robin J. Davis & Louis J. Palmer, Jr., Litigation Handbook on West
Virginia Rules of Civil Procedure 1021-22 (2002). That clearly did not happen in this case.
Because duPont was not notified that the plaintiffs would seek an injunction during the
hearing, duPont was not “given a fair opportunity to oppose the application and to prepare
for such opposition.” Consequently, the rule requires us to declare that the injunction which
was ordered without proper notice to duPont is void.
Thus, we hold that pursuant to West Virginia Rule of Civil Procedure 65(a)(1),
no preliminary injunction shall issue without notice to the adverse party. A preliminary
injunction which is ordered without notice to the adverse party is void. Notice necessarily
implies that the opposing party be provided a fair opportunity to oppose the application and
to prepare for such opposition.
This Court previously said that “[a] writ of prohibition will lie to prohibit the
enforcement of an injunction where the trial court did not have jurisdiction or exceeded its
proper jurisdiction.” United Mine Workers v. Waters, 200 W.Va. 289, 300, 489 S.E.2d 266,
277 (1997). Since the Circuit Court of Wood County exceeded its jurisdiction in this case,
a writ of prohibition will issue restraining the court from enforcing its order entered on May
1, 2003, directing duPont to provide blood testing for all members of the class who
voluntarily submit to such testing.
Actually, this case is governed by Carter v. Monsanto Co., 212 W.Va. 732, 575
S.E.2d 342 (2002), inasmuch as the fundamental issue in this case is really the same issue
already decided in the Monsanto case. In Monsanto, a landowner, Robert Carter, on behalf
of himself and a class of similarly situated plaintiffs, brought a civil action against Monsanto
and the owners of two landfills asking that the defendants pay to determine if, and how
much, of the contaminant dioxin was present on their property. The plaintiffs sought to shift
the costs of testing for the contaminant to the defendants claiming that the testing was
prohibitively expensive. Monsanto and the landfill owners countered by arguing that the
plaintiffs were “seeking expense money to conduct testing to determine if [their] property
ha[d] been damaged by exposure to dioxin; in essence, [the plaintiffs were] asking that the
burden of the expense of gathering evidence, testing and sampling, be shifted to Monsanto
and the landfill owners.” Id., 212 W.Va. at 736, 575 S.E.2d at 346. In Monsanto, this Court
agreed with the defendants that the burden was the plaintiffs to “first prove at [their] expense
that [their] property ha[d] in fact been injured.” Id.
The same is true in the case sub judice. The only difference here is that rather
than seeking expense money to determine if their property has been exposed to a
contaminant, the plaintiffs are seeking expense money to determine if they themselves have
suffered harm which is attributable to the presence of C-8 in their bloodstreams. They do not
know to what extent they may have been exposed to C-8, and there is no evidence in the
record before this Court that C-8 is harmful to humans. Like the plaintiffs in Monsanto, they
are seeking expense money. By so doing, they are asking that the burden of the expense of
gathering evidence, testing for the presence of C-8, be shifted to duPont. In a creative
manner, the plaintiffs are simply asking the circuit court to shift the costs of the discovery
process and to compel duPont to pay for their discovery. This we cannot do for the same
logic and principles set forth in Monsanto.
The plaintiffs must bear the cost of proving, at their own expense, that they
have been exposed to C-8 and that exposure has injured them. However, we note that it was
asserted during oral argument before this Court that few laboratories in the country perform
this particular type of testing. In fact, it may be that duPont has the only laboratory in the
country in which C-8 blood testing is routinely performed. If that is the case, then duPont
must cooperate with any of the plaintiffs who elect to be tested and who request testing at
that particular duPont laboratory. The plaintiffs must bear the reasonable cost of the testing,
but we emphasize that the testing must be offered at a fair and reasonable price.
Prior to making that determination, a lengthy colloquy ensued regarding the
definition of “non-trial proceeding.” Judge Hill quickly stated that he believed that “the
motions that have been filed are proceedings” within the meaning of the rule. He went on
to state, “And if the judge does not agree to recuse himself or herself, the judge shall within
seven days or prior to a non-trial hearing, allow the moving party to make a record on the
disqualification issue, and shall then move forthwith on the motion for disqualification.” If
the judge denies the motion, “he or she shall proceed with the case, and that would be the end
of that in this court.” However, “[i]f the judge grants the motion, he or she should proceed
no further.” DuPont's attorney argued that the discovery motions pending before the court
did not qualify as “non-trial proceedings,” and, therefore, the disqualification motion should
be considered regardless of when it was filed. The attorney clarified his argument by stating
that, as he read the rule, only matters which dispose of “issues of fact or law” qualify as
“non-trial proceedings,” and the twenty-one and seven day provisions are included “to
prevent last ditch, last minute challenges to the judge which would interfere with or delay a
trial or other dispositive issues.”
DuPont's counsel proceeded to explain his interpretation of the procedure for disqualification that is included in Rule 17.01. Counsel stated that he believed the judge had two options:
you would either grant the motion, in which case that would
trigger a cascade of things, including conferences with the
attorneys and whatnot . . . to pick a new judge. Or you would
deny the motion on the record. And then you would proceed to
send the matter on to the Chief Justice.
The judge asked, “Isn't Rule 17.01 really moot? Doesn't Canon 3 dispose of the matter?
Doesn't Canon 3 nevertheless, whether it's timely or not, require a judge under the Canons
of Ethics, of Judicial Ethics, to disqualify himself?” DuPont's counsel agreed, and the judge
subsequently reasoned that regardless of whether a motion is filed timely or not, if a judge
has an interest in the matter, Canon 3 requires that he “voluntarily disqualify himself.”
In the end, the circuit court ruled that “[i]t doesn't make any difference when
you file the motion.” The timeliness issue, the court declared, is “the hair of the dog” and
other issues which the court considered “more substantive” needed to be addressed. The
discussion immediately switched to whether residents of the City of Parkersburg should be
included in the class. At that time, the judge expressed “shock[] and surprise[] by [duPont's
disqualification] motion” because he stated that he “had no idea that the people in
Parkersburg were affected.”
After much discussion regarding whether the class previously had been defined
as “anybody that consumed any amount of water from a public water district which contained
any amount of C-8[,]” the judge determined that he would amend the class to include only
those who consumed water with a quantifiable amount of C-8. He next decided that he had
no interest in the outcome of the case because he lived in Parkersburg and Parkersburg's
water supply contains only detectable levels of C-8. After further discussion, the judge
found that his interest in the outcome of the litigation is de minimis and that he could and did
waive any interest which he might have. He, therefore, denied duPont's motion to disqualify
him.
West Virginia Trial Court Rule 17, titled “Disqualification and Temporary
Assignment of Judges,” governs the disqualification of circuit judges. Even though Judge
Hill finally resolved the timeliness issue in this case by deciding that the rule did not apply,
we take this opportunity to voice our concern that the rule is written in a manner which
arguably leaves it open to interpretation. We believe that reasonable people with good
judgment could easily disagree upon which motions qualify as “non-trial proceedings” which
activate the time requirements contained in the rule. In an effort to clear up any
misunderstanding generated by the rule, we are rewriting Rule 17. The revised rule will be
released contemporaneously with this opinion or soon thereafter. In the future, questions of
this nature which arise will hopefully be resolved in accordance with the revised rule.
With that said, we must now deal with the disqualification motion which was
filed in the case sub judice. Rule 17.01(c) explains the procedure which must be followed
when a party files a motion to disqualify the original judge assigned to a case and the judge
does not agree to recuse himself or herself. The rule states that the judge must “[p]roceed
no further in the matter” and transmit to the Chief Justice “a copy of the motion and
certificate” along with accompanying documents.
In compliance with the Trial Court Rules, and until the Chief Justice makes a determination on the issue of disqualification, Judge Hill is prohibited from further participating in the case below. Judge Hill must forward the motion for disqualification to the Chief Justice of this Court pursuant to the instructions contained in Rule 17.01(c)(2). Once the Chief Justice receives the motion with accompanying documentation, the Chief Justice will determine whether the evidence is sufficient to disqualify the judge. The Chief Justice will issue an order accordingly.
No. 31428 - Writ granted.
No. 31429 - Writ granted as moulded.
(a) Prerequisites to a class action. -- One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
the third degree of relationship to either of them, or the spouse of such
a person:
(i) is
a party to the proceeding, or an officer, director or trustee, of a party;
(ii) is
acting as a lawyer in the proceeding;
(iii) is
known by the judge to have a more than de mimimis interest that could be substantially
affected by the proceeding;
(iv) is
to the judge's knowledge likely to be a material witness in the proceeding.
“The granting or refusal of an injunction, whether mandatory or preventive, calls for the exercise of sound judicial discretion in view of all the circumstances of the particular case; regard being had to the nature of the controversy, the object for which the injunction is being sought, and the comparative hardship or convenience to the respective parties involved in the award or denial of the writ.” Syl. pt. 4, State ex rel. Donley v. Baker, 112 W.Va. 263, 164 S.E. 154 (1932).