Justices overrule Warren McGraw on venue issue

By Steve Korris | May 20, 2011


CHARLESTON – Circuit Judge Warren McGraw improperly exercised jurisdiction over a fee dispute between lawyers, the Supreme Court of Appeals has ruled.

On May 16, the Justices granted the Galloway Group a writ of prohibition against McGraw and dismissed a suit that R. R. Fredeking filed in Wyoming Circuit Court.

Fredeking resides in Cabell County, and Galloway Group keeps an office in Kanawha County. The Justices found Fredeking's cause of action didn't arise in Wyoming County.

"Fredeking had to show specifically that the contract between the parties was made in Wyoming County; breach of that contract occurred in Wyoming County; or that the manifestation of the breach occurred in Wyoming County," they wrote. "Fredeking has failed to do this."

They found McGraw, a former member of the state Supreme Court, committed another error by ruling that members of United Mine Workers of America live in the county and the dispute arose from union litigation.

"This reasoning is invalid," they wrote. "First, the provision regarding UMWA litigation appears in an agreement to which the petitioner Galloway is not a party.

"Second, even if Galloway had participated in the litigation involving the UMWA, our law does not support the conclusion that this fact would establish venue in Wyoming County for purposes of the legal action below."

The firms signed a contract to litigate together, but disputes arose and Fredeking sued.

For Galloway Group, Jeffrey Wakefield of Charleston filed motions seeking arbitration and challenging venue.

At a hearing last December, Wakefield proposed arbitration and struck a nerve.

McGraw said, "One of the principal issues upon which this nation was founded was the fact that we were being deprived of our jury trial by a lord and master at the time," McGraw said. "What you propose now is a return to that same kind of conduct and you are asking me to engage with you in the enforcement of that?"

Wakefield said, "No, your honor."

McGraw said, "It is extremely difficult for me, as a lawyer and as a follower and student of government and its development from the Declaration of Independence to this very courtroom today, to follow that line of reasoning that you could just simply contract away your right to have your case heard in public by a public court.

"That is hard for me to subscribe to, without regard to what the law says."

Wakefield argued on appeal that McGraw showed hostility to arbitration, but that didn't matter to the Justices.

They found the dispute didn't belong in his court at all.

Wakefield practices at Flaherty Sensabaugh Bonasso.

Katie Nichols, of the same firm, also represented Galloway Group.

John Wooton of Beckley represented Fredeking.

A former president of the West Virginia Senate, and prosecuting attorney for Wyoming County, McGraw, 72, was elected to the Supreme Court in 1998 to fill the unexpired term of Justice Thomas McHugh, who has since returned to the Court to fill the unexpired term of the late Joseph P. Albright Sr. That year, McGraw, a Democrat, defeated John McCuskey, a Republican, and Charleston attorney then-Gov. Cecil H. Underwood appointed the year before to fill McHugh's vacancy.

In 2004, he sought re-election to the Court for a full 12-year term, but was defeated by Brent Benjamin. Four years later, McGraw made a political comeback by successfully running unopposed for circuit judge. He is the only judge in Wyoming County which has its own circuit.

West Virginia Supreme Court of Appeals, case number 11-0187

Lawrence Smith contributed to this report.

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