What a July we have had here at Bailey & Wyant PLLC. The attorneys at Bailey & Wyant have been as busy as ever attending annual conferences and presenting at a Summit in Boston, Massachusetts. Although we have been enjoying the summer with our friends and family, we continue to work diligently for you and all of our clients. Please continue reading and enjoy the latest news for you.

Bailey & Wyant’s client was granted summary judgment in a commercial litigation setting in the matter of Horizon Ventures of West Virginia, Inc. v. American Bituminous Power Partners, LP, Civ. A. 18-C-76 (Marion Co. 2018). The Court found, inter alia, that AMBIT breached its agreement with Horizon when it failed to pay amounts obligated to be paid by agreed contract beginning in 2018, and that AMBIT failed to present any evidence which would support its claims that Horizon breached the contract, that the contract was impracticable or that its purpose was frustrated, and entered judgment on Horizon’s behalf for $250,000.00. Horizon was represented by Mark A. Kepple, Esq. and Benjamin P. Visnic, Esq., represented Horizon in this matter. If you have questions about this lawsuit, please call the Wheeling office at (304) 233-3100.

On July 5, 2022, Bailey & Wyant PLLC's Equity Member Kelly Morgan and Member Michael W. Taylor obtained a preliminary and permanent injunction in the case of Beaver et al v. Moore et al, also known as the “Hope Scholarship” case. 

In the case, Kelly and Michael represented State Superintendent Clayton Burch and State Board of Education President Miller Hall. The Hope Scholarship incentivized public school students to leave public schools to enter home schooling or private education by providing $4,300.00 to students who left public education. This resulted in a defunding of public schools. Because the West Virginia State Constitution provides that a thorough and efficient system of free education is a constitutional right, Kelly and Michael successfully joined with the Plaintiffs in arguing that the Hope Scholarship violated the State Constitution.

The trial court agreed and entered an Order permanently enjoining the law. The matter is now on appeal.

Arbitration Agreements: The decision of the West Virginia Supreme Court of Appeals in Beckley Health Partners v. Hoover. 

The West Virginia Supreme Court of Appeals published its Opinion in the matter of Beckley Health Partners v. Hoover on June 15, 2022. The case dealt with arbitration and nursing home contracts. In the case, Cynthia Hoover admitted her mother to The Villages at Greystone, an assisted living facility. Although she was not her mother’s attorney-in-fact, she signed a residency agreement which was required for her mom to be admitted and an arbitration form which was not required for admittance. After her mother had fallen and was injured, Cynthia, as attorney-in-fact, sued. The defendants moved to compel arbitration pursuant to the arbitration agreement.

The circuit court had applied the Supreme Court of Appeals’ decision in State ex rel. AMFM, LLC v. King to conclude that Ms. Hoover lacked authority to bind her mother to the arbitration agreement and that the defendants’ four, alternative theories of contract formation—ratification, assent, estoppel, and unilateral contract—did not establish a valid agreement to arbitrate on the facts of the case. In large part, the Circuit Court denied the motion to compel because, under AMFM, Cynthia’s only authority for her mother was to “make strictly heath care decisions” on behalf of her mother, and, therefore, was not a competent party as a matter of law to sign the arbitration agreement on her mother’s behalf.

The West Virginia Supreme Court of Appeals affirmed the circuit court’s decision. The Court agreed that the arbitration agreement in this matter paralleled the one in AMFM: that acceptance of the arbitration agreement was not a precondition to admission to Greystone and could have been rescinded within thirty days. The Court specifically stated that:

“Under AMFM, such an agreement is not a health care decision under the [West Virginia Health Care Decisions] Act. Administratrix Hoover was Ms. Faw’s health care surrogate when she endorsed the Arbitration Agreement. So, Administratrix Hoover’s authority to act on her mother’s behalf was limited to making health care decisions. ‘[A]n agreement to submit future disputes to arbitration, which is optional and not required for the receipt of nursing home services, is not a health care decision under the West Virginia Health Care Decisions Act, W. Va. Code § 16-30-1 et seq.’ Consequently, Administratrix Hoover then lacked the authority to bind her mother to the Arbitration Agreement. For that reason, Administratrix Hoover was not a competent party to the Arbitration Agreement. And for that reason, as well, the Arbitration Agreement does not satisfy the first condition necessary to form a valid contract. Under AMFM, the Arbitration Agreement is not a valid contract.”

The defendants argued in response that AMFM did not control because the claims were indeed subject to arbitration due to the ratification, assent, estoppel, and unilateral contract arguments presented. The Supreme Court of Appeals, after acknowledging that a signatory to an arbitration agreement may invoke traditional theories of contract and agency law to bind a non-signatory to an arbitration agreement, still found the circuit court did not err. There was no ratification because “the durable power of attorney executed by Ms. Faw explicitly withheld from Administratrix Hoover the authority to enter agreements to arbitrate future disputes on Ms. Faw’s behalf.” There was no assent because Ms. Hoover did not bring her claims in her personal capacity, but instead, in her fiduciary capacity. Finally, the Court struck down both the estoppel and unilateral contract arguments because acceptance of the terms of the arbitration agreement was not a precondition to receipt of services under the residency agreement.

Thus, there was no enforceable arbitration agreement. If, perhaps, the arbitration agreement in this case was a pre-requisite to receive the services agreed upon in the residency agreement, the contract would have been enforceable under the defense theories presented.

Over the 4th of July weekend several members from the Charleston and Martinsburg Offices of Bailey & Wyant PLLC participated in a fundraising event at the EWVRAA in Martinsburg, WV. Partner James W. Marshall III, 3rd Year WVU Law Student Taylor Giles, Paralegal and Client Account Manager R. Joan Barney, and Marketing Director Tracey Wilson raised funds to support the MRB Foundation and assisted promoting the 2023 EWVRAA Air Show taking place in August of 2023.

To discuss your case, e-mail us (baileywyant@gmail.com) or give us a call.