As we complete the final moments of February and leap towards the month of March and the new season of Spring, the attorneys at Bailey & Wyant, PLLC Spring into action with many favorable rulings, and judgments for our clients. Please continue to read the latest news for you, and as always we thank you for your continued support.

Bailey & Wyant, PLLC's Charleston office hosted an after hours reception for the attendees of the West Virginia Association of Counties during the 2023 Annual Conference. Pictured next to Chuck is Allison Taylor, Fayette County Commissioner.

The annual conference was held at the Embassy Suites in Charleston. The members received presentations daily by their fellow county members, U.S. Senator, Shelly Moore Capito, Governor, Jim Justice, and Baby Dog, as well as observing House and Senate floor sessions while visiting the State Capitol.

Bailey & Slotnick, PLLC is a proud sponsor of the Charleston YWCA. This year the YWCA celebrated 4 incredible women and their accomplishments.

Case Law Updates: Does Rule 60(b) Toll the Deadline to File an Appeal?

The West Virginia Supreme Court of Appeals issued a memorandum decision recently, in the matter of Limer v. Raleigh County Community Action Association (RCCAA), No. 21-1030, 2023 WL 245340 (W. Va. Jan. 18, 2023). Although not creating any new law, the memorandum decision is a helpful reminder of the strict adherence Courts follow with following the deadlines set by law with respect to perfecting appeals. The case dealt with a wrongful termination and intentional infliction of emotional distress claim. The Circuit Court granted summary judgment in favor of the employer and later denied Plaintiff’s Rule 60(b) relief from judgment or order motion.

The Plaintiff in the case decided to appeal both the summary judgment order and the order denying her Rule 60(b) motion. The West Virginia Supreme Court of Appeals found that she failed to perfect the appeal for the summary judgment order prior to the applicable deadline. Under West Virginia Code § 58-5-4 and 5(f) of the West Virginia Rules of Appellate Procedure, unless an appeal from a final order is timely perfected within four months of the date the judgment being appealed was entered, the Court does not have jurisdiction to consider the appeal. Here, the summary judgment order was entered on October 26, 2021, and the appeal was not perfected until April 4, 2022. Thus, there was no doubt that the Plaintiff fell outside the window to appeal the summary judgment order.

The Plaintiff likely assumed that the Rule 60(b) motion that was also being appealed tolled the time to perfect the appeal on the summary judgment order since it sought to seek relief from the order in the first place. However, the West Virginia Supreme Court of Appeals, looking back to long standing precedent found that, “[a] motion made pursuant to Rule 60(b), W.Va.R.C.P., does not toll the running of the appeal time …” Syl. Pt. 1, Law v. Monongahela Power Co., 210 W. Va. 549, 558 S.E.2d 349 (2001) (quoting Syl. Pt. 1, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974)). The Court went on to further reiterate that when the Court is “presented with untimely appeals under W.Va. Code, 58-5-4 [], this Court has consistently held that the statute is jurisdictional and that failure to file a timely appeal presents a jurisdictional infirmity precluding the court from accepting the appeal.” W. Va. Dep’t of Energy v. Hobet Mining & Constr. Co., 178 W. Va. 262, 264, 358 S.E.2d 823, 825 (1987) (citations omitted).

Thus, this decision is a critical reminder of the importance of making sure every appealable issue is timely appealed. Although the Plaintiff’s logic arguably made sense, the plain language of the West Virginia Code and the West Virginia Rules of Appellate Procedure are clear as day: a party has four months to perfect the appeal unless extended by the Court under § 58-5-4.

Bailey & Wyant, PLLC's, Charles R. Bailey and John P. Fuller obtained summary judgment on behalf of a Sheriff’s Deputy that had been involved in a fatal shooting following a pursuit. The United States District Court for the Southern District of West Virginia found that the actions by the Deputy Sheriff were reasonable and did not violate the United States Constitutional Rights of the Decedent. 

John P. Fuller and Samuel M. Bloom received a favorable ruling on an Appeal to the 4^th Circuit Court of Appeals. The District Court had previously granted a motion to dismiss filed on behalf of a West Virginia Circuit Judge and West Virginia Family Court Judge.

The Plaintiff took an appeal to the 4^th Circuit. The 4^th Circuit upheld the District Court’s Order dismissing both the Circuit Court Judge and Family Court Judge. 

Bailey & Wyant, PLLC's Equity Member John P. Fuller and Member Suleiman Oko-ogua received a favorable ruling from the United States Court of Appeals for the 4^th Circuit. Bailey & Wyant, P.L.L.C. successfully moved for Summary Judgment at the District Court on behalf of a Correctional Officer that had deployed OC spray in an effort to gain control of an Inmate.

The District Court found that the use of OC spray did not violate the Inmate’s federally protected Constitutional Rights. The 4^th Circuit Affirmed the grant of Summary Judgment. 

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