West Virginia Record

Wednesday, October 23, 2019

Not enough Justices to hear flood appeal

By Steve Korris | Oct 19, 2007


CHARLESTON – Charleston attorney Stuart Calwell approached the West Virginia Supreme Court of Appeals on Oct. 10 hoping to revive hundreds of six-year-old suits over flooding around Beckley, but the Court vanished before his eyes.

As Calwell stepped forward with a petition for leave to appeal an order of Ohio Circuit Judge Arthur Recht, the Court already had lost two of five Justices.

Chief Justice Robin Davis had disqualified herself because her husband, attorney Scott Segal of Charleston, works on the plaintiff team.

Justice Larry Starcher's chair was empty. He would miss the whole day.

Before Calwell could speak, Justice Brent Benjamin recused himself. He said a defense attorney was his former partner.

That left only Justice Spike Maynard, the Court's acting chief in Davis's absence, and Justice Joseph Albright.

Maynard said they lacked a quorum. He said they would have to reschedule the motion.

Calwell and other attorneys who filed about 2,000 suits against coal mines, timber operations and railroads after a flood in 2001 suffered two terrific defeats this year.

In January, Recht dismissed every claim from the Coal River watershed.

In February, Raleigh Circuit Judge John Hutchison threw out a jury verdict in favor of plaintiffs in the upper Guyandotte River watershed.

Calwell wrote in his petition for leave to appeal Recht's order that he would soon petition for leave to appeal Hutchison's order.

Recht, Hutchison and Circuit Judge Gary Johnson act as a flood litigation panel under special assignment from the Supreme Court of Appeals.

In 2002, the Court assigned about 2,000 suits to the panel.

Recht's order dismissing the Coal River watershed described the litigation as a morass, meaning swamp.

"Plaintiffs have never provided the basic, core information that must be included in all complaints," he wrote. "So-called 'mass litigation' filings require greater rather than lesser vigilance regarding the sufficiency of pleading."

That struck Calwell as unfair. His petition for appeal stated that Recht's theory would entitle a defendant to core information before a plaintiff could avail himself of discovery.

"This is not the law in West Virginia and the Panel Judge does not have the jurisdiction to make new law or policy regarding the requirements of pleading," Calwell wrote.

He argued that defendants should have provided core information to plaintiffs.

Noting that Recht denied a request to require responses from defendants, he wrote, "... this is the very information the Panel Judge now complains is missing from petitioners' allegations."

He argued that if the judges didn't plan to obtain core information from defendants, they should have said so five years ago.

Recht's order, he wrote, "... could have been made at the entry, or soon thereafter, of this Court's administrative order dated May 16, 2002 ..."

"Plaintiffs have spent nearly two million dollars and thousands of hours of lawyer and staff time in the development of their cases," he wrote. "The Defendants, as well, have invested heavily in these cases.

"The nature of the ruling could be stated as simply as this: 'You know those papers you filed six years ago? Well it turns out they weren't any good after all.'"

Calwell wrote that "an appearance has been created that the time has come to simply dispose of the flood litigation."

"When an appearance that the right to plead one's case to his community is taken away by untimely, and in plaintiffs' view contrived, judicial rulings, then a piece of something of great value to us all has been lost," he wrote.

Finally, Calwell pleaded that the panel judges fail to understand plaintiffs' theory that defendants used the land unreasonably.

"Plaintiffs are not required to plead detailed facts, or any facts for that matter, showing that the defendant did not exercise due care in using his property in such a way as to interfere with plaintiffs' use of their property," he wrote. "The Panel keeps insisting, and particularly Judge Recht, that unreasonableness is focused on the activity of the defendant. Hence, the constant admonition that 'Coal mining and timbering are not unreasonable activities.'

"Petitioners have never alleged that they are. The question is whether the interference with petitioners' property is unreasonable. In short, reasonable acts can lead to unreasonable interference with a neighbor's property."

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