Petitioner doesn't attach trial transcript, loses appeal

By John O'Brien | Feb 25, 2013

CHARLESTON – Because his attorney didn’t submit the proper paperwork, the son of a Harrison County landlord has lost his appeal in a carbon monoxide poisoning lawsuit.

The state Supreme Court ruled Feb. 22 that Frank Gallo and his lawyer, Thomas W. Kupec, should have submitted the trial transcript when filing their appeal. Gallo was found 75 percent at fault for the carbon monoxide poisoning of the Thompson family, who rented a house from Gallo’s dad John.

“Petitioner argues about what evidence was presented or was not presented at trial,” says the memorandum decision, concurred in by all five justices.

“However, Petitioner has failed to include the trial transcript in the appendix record on appeal. Without an adequate record, including a transcript, we are unable to evaluate any of Petitioner’s claims.

“Moreover, based upon the representation in the parties’ briefs, we must conclude that the jury heard the evidence and resolved any disputes when reaching its verdict.”

The lawsuit alleged Gallo was responsible for the maintenance of the home that the Thompsons, a family of five, rented.

There was a dispute at trial, which took place in Harrison County Circuit Court, about who had made arrangements for unqualified repairmen to work on the furnace and vent a few days before the poisoning.

Gallo claimed Michelle Thompson made the arrangements, while the plaintiffs claimed Gallo did.

The jury found Gallo was negligent, assigning him 75 percent of the fault. The total jury award was $133,239.28, primarily made up of medical expenses.

That put Gallo on the hook for nearly $100,000. He’s also jointly and severally liable for the entire judgment.

From the West Virginia Record: Reach John O’Brien at

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