Supreme Court's fall term begins Tuesday

By Steve Korris | Sep 3, 2010

Davis CHARLESTON – This week, the West Virginia Supreme Court of Appeals will return to the Capitol for a dazzling variety of far-reaching cases.


CHARLESTON – This week, the West Virginia Supreme Court of Appeals will return to the Capitol for a dazzling variety of far-reaching cases.

Back from summer recess, the Justices will hear arguments Tuesday and Wednesday.

First on Tuesday, former Key Communications employee Mary Wells will ask for a new trial on an age discrimination claim.

Wells wants jurors to know that an older worker lost his job the day she lost her job.

She believes Kanawha Circuit Judge James Stucky committed an error when he excluded evidence about the older worker, Alfred Nelson, at trial.

Key Communications terminated Wells and Nelson in 2004. She was 52 and he was 56. Ranson Law Offices of Charleston filed suits for both in 2006.

Nelson settled his claim, and Wells took her claim to trial.

She planned to tell jurors about Nelson, but Key Communications moved to exclude it.

Stucky granted the motion, finding the terminations involved separate and distinct decisions by different supervisors.

On appeal, George Morrone of the Ranson firm wrote that "in both cases younger employees with lower job performance ratings were retained."

Samuel Brock of Charleston answered that evidence about Nelson would have wasted Stucky's time in a minitrial of the unique circumstances of his case.

Development battle

Next, a battle for control of a big housing development in Martinsburg will break out.

Jason Foster, homeowner in The Gallery subdivision of Orchard Development, seeks to block construction of studio town homes with 800 square feet of living space.

He claims his covenant requires a minimum of 1,700 square feet.

He predicts studio units would completely change the character of the community and devalue other properties.

He lost in Berkeley County court, where Circuit Judge David Sanders decided the 1,700 square foot rule applied only to single family detached homes.

He found enough flexibility in subdivision documents to allow studio units.

He wrote that The Gallery included 136 town homes smaller than 1,700 square feet, "all plainly visible," he wrote.

He relied on testimony from Gregory Didden, who had sold real estate in the Eastern Panhandle for 43 years.

"Mr. Didden testified that construction of town homes or studio town homes does not necessarily diminish the value of single family homes in a subdivision," he wrote. "Mr. Didden testified that the construction of these homes would enhance value rather than diminish value."

Foster presented no evidence to contradict Didden, he wrote.

On appeal for Foster, Gregory Bailey of Shepherdstown wrote that Sanders would let Orchard Development unilaterally amend the restriction.

He wrote that Foster's testimony, more than 150 objections and photographs create genuine issues of fact worthy of discovery.

Joseph Caltrider of Martinsburg answered, "Orchard Development established an overall scheme for The Gallery whereby it can legitimately control what is built, how it is built and when it is built."

He wrote that Foster bought his house after careful consideration and full disclosure.

"All of the provisions of the covenants and design guidelines were readily available to him before he purchased his house if he had simply availed himself of the documents," he wrote.

He wrote that the developer has dedicated 481 lots and plans 2,000 lots.

Statute of limitations

Next, opponents in a medical malpractice case will disagree about the day the statute of limitations started running.

Annie Mack-Evans sued Plateau Medical Center in Fayette County in 2006, more than two years after the death of her mother, Mamie Mack.

Mack-Evans claimed the medical center severely injured her mother by proceeding with hip replacement surgery in spite of high blood pressure.

She sued a nursing home and others, and settled those claims.

Plateau Medical Center moved for summary judgment under the statute of limitations, and Circuit Judge Paul Blake granted it.

He ruled that the statute began to run when Mack died.

On appeal, Harry Bell of Charleston wrote that Mack was legally incompetent and her claim was tolled until her daughter was appointed administrator of her estate.

He wrote that Mack-Evans didn't believe at the time of her mother's death that the medical center's negligence caused her death.

Treasury lesson

Next, a former physics teacher will deny that he aims to raid the state treasury.

James Beichler claims West Virginia University at Parkersburg owed him $26,568 when his contract ran out.

Stucky dismissed his claim, affording the state's immunity to the university.

He wrote that Beichler claimed unpaid wages, treble damages and attorney's fees.

"This is exactly the type of raid on the public treasury for which constitutional immunity provides protection," he wrote.

On appeal for Beichler, Walt Auvil of Parkersburg wrote that sovereign immunity didn't bar the claim because the state unlawfully withheld salary.

For the university, senior assistant attorney general Jendonnae Houdyschell replied that Beichler sought to renegotiate past contracts.

The West Virginia Employment Lawyers Association filed a brief as friend of the court, taking Beichler's side.

"Taken to the extreme, under the trial court's holding, state employees would be working at the mercy of the state, which could pick and choose which employees to pay for the work performed and which employees to refuse payment," Lonnie Simmons of Charleston wrote.

Crash question

On Wednesday, Scott Segal of Charleston will try to persuade the Justices that a lawsuit between Canadians over an airplane crash in Virginia belongs in West Virginia.

Segal represents the estate of passenger Margaret O'Brien, who died in the crash.

The estate sued the pilot and others in Kanawha County, asserting jurisdiction because the airplane flew over West Virginia space and refueled at Charleston's Yeager Airport.

Circuit Judge Duke Bloom ruled that West Virginia's long arm statute didn't provide him with jurisdiction over the defendants.

He called the connection to West Virginia "tenuous at best," finding it unlikely that brief and minimal contacts would satisfy federal due process.

He wrote that the cause accrued in Virginia, where the airplane crashed, but he suggested the case might belong in Canada.

On appeal, Segal wrote that all the pilot's negligent acts took place in West Virginia.

He wrote that the pilot "headed the aircraft into weather conditions neither he nor his aircraft were equipped to handle."

He wrote, "His negligent operation of the aircraft in the face of air frame icing occurred within the confines of the air space over the state of West Virginia."

In response, Ted Kanner of Charleston accused the estate of forum shopping and argued that the action belonged in Ontario.

Segal's spouse, Chief Justice Robin Davis, disqualified herself from the case. Circuit Judge Jane Hustead will replace her.

Discrimination case

Next, Lynda Young and her former employers at Bellofram Corporation will dispute the reasons the company fired her.

Bellofram claims she failed to discipline subordinates who made derogatory comments, and she claims Bellofram discriminated by age and gender.

Circuit Judge Arthur Recht found in her favor, awarding about $240,000 to her and about $170,000 to her lawyers.

Recht found Young should have received two warnings under Bellofram's progressive discipline policy.

He found a younger man received less discipline for similar conduct.

On appeal for Bellofram, Ancil Ramey of Charleston wrote that Young placed the company at risk by letting subordinates use derogatory terms.

He wrote that after an investigation, Bellofram fired her and two subordinates.

"Bellofram makes no apologies for its decision," Ramey wrote.

For Young, Carl Frankovitch of Wheeling wrote, "All of the evidence in this case showed that Ms. Young herself was not involved in any harassing conduct."

He wrote that failure to follow progressive discipline was evidence of pretext.

As friends of the court, the West Virginia Chamber of Commerce and the International Brotherhood of Teamsters both pleaded to reverse Recht.

For the Chamber, A.L. Emch of Charleston wrote that "courts should not second guess an employer's decision to deal decisively with a problem supervisor that allows her friends to engage in horrific harassment at the expense of her subordinates."

For the Teamsters, Joyce Goldstein of Cleveland wrote that Young allowed harassment of bargaining unit members despite having authority to stop it.

"The union did not oppose the discipline, as it agrees Bellofram took appropriate action to maintain a positive work environment," she wrote.

Petition access

Next, the Shepherdstown Observer newspaper will plead for access to names of voters who signed a petition to hold a referendum on zoning.

Sanders declared the names confidential, writing that publication would have a chilling effect on the ability of citizens to petition the government.

He held that open records law didn't apply because the petitions weren't prepared by a public body.

On appeal for the Observer, Stephen Skinner of Shepherdstown wrote that the decision would drastically curtail access to important documents.

Jefferson County assistant prosecuting attorney Stephanie Grove answered that the petitions were prepared by a citizen group not affiliated with the county commission.

As friends of the court, the Reporters Committee for Freedom of the Press and the Society of Professional Journalists sided with the Observer.

"There is a strong public interest in scrutinizing the certification process and without reporter coverage, the public remains uninformed," Troy Giatras of Charleston wrote.

Another friend, Joseph Thompson of Harper's Ferry, wrote that if a petition isn't public, a clerk can certify or deny it regardless of its sufficiency.

AT&T seeks arbitration

Next, AT&T Mobility will plead for a writ of mandamus requiring arbitration of a class action claim from former customer Charlene Shorts.

A writ would reverse Circuit Judge Ronald Wilson of Brooke County, who ruled that her challenge to a $175 early termination fee belonged in his court.

He declared the arbitration clause in her contract unconscionable because it banned class actions, but he didn't feel certain.

He stayed the case so the Supreme Court of Appeals could review his decision.

For AT&T Mobility, Jeffrey Wakefield of Charleston told the Justices that arbitration is a cost efficient alternative to litigation.

"The time and expense involved with a trial is the precise harm that the motion to compel arbitration seeks to avoid," he wrote.

Palisades Collections, which bought the rights to Shorts's unpaid phone bills, supported AT&T's petition.

William Wilmoth of Wheeling wrote, "The most confusing aspect of the circuit court's opinion here is that it recognized the plain fact that petitioner does not hold a monopoly on cell phone service."

Christopher Regan of Wheeling answered for Shorts that, "The truth is that AT&T favors exculpation and immunity."

He wrote, "Neither of these, however, is among the goals of the Federal Arbitration Act."

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