As Summer comes to a close and the kids head back to school, we can't help but look forward to the Fall Season. No, I am not talking about rushing to the nearest Starbucks to grab a Pumpkin Spice Latte, and please don't unpack those sweaters and boots quite yet. Fall doesn't officially begin until September 22nd. There are many exciting things happening at Bailey & Wyant PLLC in the coming weeks. This past month, while working diligently for you and our clients we were able to take in a Baseball game, promote an air show, and attend even more conferences. Please continue reading and enjoy the latest news for you.

Introducing your Bailey & Wyant PLLC 2023 Best Lawyers®

Bailey & Wyant, PLLC is proud to announce our team of recognized lawyers in the 29th edition of The Best Lawyers in America® 2023, published by Best Lawyers®.  

In our Charleston Office, Managing Member, Charles R. Bailey has been recognized in the areas of Employment Law- Management, Insurance Law, and Litigation-Insurance. Equity Member, Marc Slotnick has been recognized for his practice of Real Estate Law. Equity Member, Justin C. Taylor has been recognized for his practice in Product Liability Litigation-Defendants. Of Counsel, Joseph A. Horter has been recognized in the areas of Commercial Litigation, Construction Law, and Personal Injury Litigation-Defendants. Member, David E. Schumacher has been recognized in the areas of Insurance Law and Product Liability Litigation-Defendants. Member, David J. Mincer has been recognized in the areas of Employment Law-Management and Insurance Law.

In our Wheeling Office, Managing Member, David L. Wyant has been recognized in the areas of Commercial Litigation, Litigation- Banking and Finance, Litigation- Labor and Employment, Medical Malpractice Law- Defendants, and Product Liability Litigation- Defendants. Equity Member, Thomas E. Buck has been recognized in the area of Litigation- Labor and Employment. Member, Diane G. Senakievich has been recognized in the area of Personal Injury Litigation- Defendants.  

For more than 40 years, Best Lawyers has been regarded by both the profession and the public as the most credible measure of legal integrity and distinction in the United States. As such, recognition by Best Lawyers symbolizes excellence in practice.  Inclusion in Best Lawyers is based on a rigorous peer-review survey comprising more that 12.2 million confidential evaluations by top attorneys.  

Mark A. Kepple, Equity Member of Bailey & Wyant PLLC's Wheeling office, successfully tried a case to jury in the United States District Court for the Northern District of West Virginia before Chief Judge Thomas Kleeh. The case involved issues of a landslip onto property owned by Kepple’s client, Metro Towers, LLC in Morgantown, WV. After a two-day trial, the jury decided the liability issue in favor of Metro Towers, LLC and awarded the requested damages. 

The focus of the article this month focuses on a niche topic: “ancient documents”. Ancient documents are a term of art in the law for documents that are at least 20 years old. However, before discussing the new law on ancient documents, an overview of “hearsay” is necessary.

The West Virginia Rules of Evidence generally prohibits “hearsay” from being admitted into evidence (i.e. a statement that is made while not testifying at the current trial or hearing and is being offered into evidence to prove the truth of the matter asserted in the statement). Thus, a document that contains a hearsay statement may be excluded from evidence. However, there are a number of exceptions to the hearsay rule. One such exception is the “ancient documents” rule. The West Virginia Rules of Civil Evidence provides that “[a] statement in a document that is at least 20 years old and whose authenticity is established” can be admitted into evidence even though it is hearsay. Thus, the admissibility into evidence of an ancient document hinges on whether the authenticity of the document can be established.

This was recently addressed by the West Virginia Supreme Court of Appeals in their 2022 decision in the matter Gregory v. Long. In the case, Plaintiffs Tim and Janice Gregory owned 152 acres of land in Upshur County. Their neighbors, Defendants Jack and Lora Long, owned an adjacent 50 acres, and there was a roadway across their land which the Gregorys were legally entitled to use. They squabbled over “the right of way’s legal width and the circumstances under which the plaintiffs may use it” with the Longs objecting to the Gregorys using the road to haul timber from their property. After their lawyer did some sleuthing and found a 1905 map hanging in the Upshur County Courthouse which they claimed “show[ed] that the roadway traversing the defendants’ property is an ancient, public, county road” the Gregorys amended their complaint relying on landmarks the map showed and referred to state laws in the 1800’s and early 1900’s requiring county roads to occupy a right of way not less than thirty feet.” The circuit court refused to consider the 1905 map because there was no evidence it was a “public record.” 

The West Virginia Supreme Court of Appeals rejected the argument that the map was hearsay and not subject to the public records exception because “there is a separate rule of evidence which provides that the map is admissible, despite being hearsay: the ancient document rule.” In their holding, the Court held that an ancient document or data compilation may be authenticated by a litigant showing that the item: (1) is in a condition that creates no suspicion about its authenticity; (2) was found in a place where, if authentic, it would likely be; and (3) is at least twenty years old when it is offered into evidence. W. Va. R. Evid. Rule 901(b)(8). Once these three conditions are met, statements in the ancient document or data compilation are not excluded by the rule against hearsay. W. Va. R. Evid. Rule 803(16). Accordingly, the West Virginia Supreme Court of Appeals reversed the lower court and created new law pertaining to establishing the authenticity of ancient documents. 

Of Counsel, Albert "Abbie" C. Dunn of the Charleston Office had another Board of Veterinary Medicine case dismissed. The complainant contended that the veterinarian charged for services not rendered to her dog. The client properly established that the care provided and charges issued were appropriate and performed, therefore the case was dismissed.

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