April Showers did not rain out our Parade
The month of April has been prosperous for the West Virginial legislature and our attorneys at Bailey & Wyant PLLC. Attorneys from all three offices, Charleston, Wheeling and Martinsburg continue to represent their clients with the utmost dedication and resolve. Meanwhile, the West Virginia legislature has passed new legislation protecting businesses from Covid related employment suits, all while creating an intermediate appellate court, modifying Worker's Compensation rules, and amending the consumer protection act. Please enjoy this month's newsletter and updates on the newly formed intermediate appellate court.
Bailey & Wyant PLLC's Member Jordan K. Herrick and Associate Samuel M. Bloom
Summary Judgment on behalf of Healthcare Workers
Member Jordan K. Herrick and Associate Samuel M. Bloom of the Charleston Office obtained summary judgment on behalf of two healthcare workers at Mount Olive Correctional Complex.

The Court found that the Plaintiff did not file a grievance in regard to the allegations against the two healthcare workers and therefore, he did not exhaust his administrative remedies and was barred from filing suit against the Defendants.
Bailey & Wyant PLLC's Of Counsel, Albert "Abbie" C. Dunn
Motion to Dismiss Granted
Bailey & Wyant PLLC's Of Counsel, Albert "Abbie" C. Dunn of the Charleston Office obtained dismissal on an alleged debt collection case filed in federal court.

The case was dismissed by the Court upon a Motion to Dismiss asserting that the Plaintiff had failed to show a concrete injury as to establish Article III standing; and the Plaintiff had failed to state a claim upon which relief can be granted, because under the FDCPA, Defendant was not a debt collector.
Dismissal of Complaint Against Health Inspector
Bailey & Wyant PLLC's, Member Jennifer E. Tully and Associate Adam K. Strider
Bailey & Wyant Member Jennifer Tully and Associate Adam Strider secured the dismissal of a Complaint filed against a Putnam County Health Inspector who was sued for enforcing COVID safety regulations, including the mask mandate. The Plaintiffs, operators of a Hurricane restaurant, filed the lawsuit in September of 2020 in Federal Court in Huntington. Governor Justice was also a Defendant in the suit.

In parts relevant to our client, the Plaintiffs alleged that the Health Inspector violated their First Amendment rights by conducting an inspection of their restaurant as a result of a social media post they had made stating that they would not enforce the statewide mask mandate in their restaurant. They contended that the inspection was in retaliation for the viewpoints expressed in their social media post. They also argued that the decision of wearing or not wearing a mask was itself political speech, and therefore enforcement of the mask mandate violated the First Amendment. Plaintiffs further claimed that the Health Inspector threatened assorted regulatory action if they did not comply with the mask mandate order in the future.

In February of 2021, the Hon. Robert C. Chambers granted our Motion to Dismiss, holding that the Health Inspector was entitled to qualified immunity, because no First Amendment violation occurred. In his order, Judge Chambers agreed with our contention that the Plaintiffs had failed to allege any causal connection between the views expressed in the social media post and any official action taken by the Health Inspector. Rather, the threat of regulatory action was if they failed to actually comply with the law, rather than conditioned on removal of their social media posts. Thus, the Health Inspector was entitled to qualified immunity because he was merely enforcing a facially-valid law that he was tasked with enforcing.

The case is of record in the U.S. District Court for the Southern District of West Virginia as Stewart v. Justice, CIVIL ACTION NO. 3:20-0611, 2021 U.S. Dist. LEXIS 24664, 2021 WL 472937 (S.D.W.Va., Feb. 9, 2021).
Bailey & Wyant PLLC's Wheeling Member Mark A. Kepple
Unconscionable Contract
Mark A. Kepple, Member of the Wheeling Office, was successful in the matter of Horizon Ventures of West Virginia, Inc., a West Virginia Corporation, v. American Bituminous Power Partners, L.P., No. 19-0171 (January 2021). Kepple successfully argued on behalf of Horizon that the lower court erred in finding that a contract between Horizon and American Bituminous was unconscionable without finding both procedural and substantive unconscionability. Horizon’s position was adopted by the court and the lower court reversed. Mark Kepple argued the case and Benjamin Visnic provided research support and moot court preparation assistance.  
Bailey & Wyant PLLC's Member James W. Marshall III and Associate Adam K. Strider.
Summary Judgment
for Jefferson County
Bailey & Wyant PLLC's Member James W. Marshall III, and Associate Adam K. Strider obtained a summary judgment on behalf of Jefferson County Prosecuting Attorney and Jefferson County Commission. He was sued for allegedly disclosing confidential information.

The court ruled that the information was already in the public domain and that the prosecuting attorney was then entitled to both absolute and qualified immunity.
Keeping our Readers in the Know
An Update on Senate Bill 275
Bailey & Wyant PLLC's Associate Lauren Mahaney explains the Intermediate Appellate Court

On April 9, 2021, Governor Jim Justice signed Senate Bill 275 into law establishing an intermediate appellate court alleviating pressure between circuit courts and appeals to the West Virginia Supreme Court of Appeals. The idea for such a court was first introduced during the 2009 session and was later established as a part of the West Virginia Appellate Reorganization Act of 2021. The Act establishes the basic framework for the Intermediate Court of Appeals to be fully operable by July, 2022.  
West Virginia is no stranger to adopting legislation intended to ease the stress on the existing legal system in the state. In 2012, West Virginia was one of the first states in the United States to adopt a business court. The business court took many of the complex issues needing particular care from the busy dockets of circuit courts leaving them with the time to fully address important criminal and family-related cases. At the time the business court division was established in West Virginia, it was one of the first of its kind across the country. However, prior to this bill establishing an intermediate appellate court, West Virginia was one of only ten states without an intermediate court of this nature. 
Once the intermediate appellate court is established it will have jurisdiction over final orders in circuit court civil cases, family court cases, circuit court guardianship or conservatorship matters, agency or administrative law judge matters, health care authority matters, office of judges matters, and workers’ compensation board of review matters. The Court will issue written decisions in each appeal which will be binding precedent over all lower courts and agencies unless the decisions are subsequently overturned by the West Virginia Supreme Court of Appeals which will have discretionary review of decisions. The Court will consist of three judges initially appointed by the Governor and each judge will serve staggered, 10-year terms.  
An intermediate court of appeals will grant the West Virginia Supreme Court of Appeals the ability to significantly limit the matters it hears to matters of first impressions and significant legal issues rather than having to focus on correcting lower court errors.  

Our philosophy is simple. We provide aggressive and effective legal representation, while being ever mindful of each client's individual needs, goals, and economic interests. No matter how complex or novel, our focus in a case is always to reach the right resolution for our client.

To discuss your case, e-mail us (baileywyant@gmail.com) or give us a call.
304.345.4222 CHARLESTON
304.233.3100 WHEELING
304.901.2000 MARTINSBURG 


Bailey & Wyant, PLLC