B&W Associates Admitted to the WV Bar

Bailey & Wyant PLLC's newest Associates

From Left to Right: Calvin Tomblin, Isabella Ortiz and Taylor Giles

Bailey & Wyant, PLLC welcomes 3 new Associates to the firm; Calvin Tomblin (Charleston), Isabella Ortiz (Wheeling) and Taylor Giles (Martinsburg).

Calvin Tomblin is an Associate in Bailey & Wyant, PLLC’s Charleston, West Virginia office. He attended West Virginia University for both his undergraduate degree and law school degree. During law school Calvin interned with Fairmont State University’s General Counsel office and the Preston County Public Defender’s office. During his last year, he served as a student attorney for the West Virginia Innocence Project Clinic at WVU Law.

Isabella Ortiz attended West Virginia University and graduated cum laude in 2019 with a Bachelor’s of Science in Journalism. Isabella earned her J.D. in 2023 from West Virginia University College of Law where she graduated Order of the Barristers and with a pro bono distinction. Isabella is originally from Fredericksburg, VA and currently resides in Wheeling. 

Taylor Giles was born and raised Charleston, West Virginia. During his time at West Virginia University in both his undergraduate studies and law school, he was heavily involved in the Boy Scouts of America. Taylor was a freelance journalist covering breaking news and wrote over 500 articles published worldwide while attending law school. He also served as a student attorney in the WVU College of Law Veterans Advocacy Clinic during his last year of law school. Taylor previously served as a summer clerk in Bailey & Wyant PLLC’s Martinsburg office and returns as an Associate. He lives in Charles Town, West Virginia. 

Motion to Dismiss Granted

Martinsburg Equity Member James W. Marshall, III

and Associate Celeste E . Webb of Charleston

James W. Marshall, III, Equity Member of the Martinsburg office and Celeste E. Webb, Associate of the Charleston office, were granted a Motion to Dismiss on behalf of the 167^th Airlift Wing of the West Virginia Air National Guard Fire Department. 

The United States District Court for the Northern District of West Virginia dismissed the lawsuit, finding that the 167^th was entitled to sovereign immunity.  

Summary Judgment and Dismissal x 2

Charleston's Of Counsel, William E. Murray and Associate, Jaden P. Rhea

Bailey & Wyant PLLC's Of Counsel, William E. Murray and Associate, Jaden P. Rhea obtained summary judgment on behalf of several correctional officer defendants at Eastern Reginal Jail in a lawsuit alleging excessive force against an inmate. The Northern District of West Virginia granted compete summary judgment for the defendants and dismissed the case finding that the correctional officers responded to Plaintiff’s belligerent actions with a measured, standard response that did not violate the Eighth Amendment.

In addition, Mr. Murray and Ms. Rhea also obtained summary judgment for the Division of Corrections and a correctional officer defendant from Mt. Olive Correctional Complex and Jail in a lawsuit alleging the failure to intervene in an inmate altercation. The Southern District of West Virginia granted complete summary judgment for the defendants and dismissed the case finding that the correctional officer acted reasonably in responding to the altercation and that he was not required to physically intervene in the altercation when it was not tactically sound to do so. 

Motion to Dismiss Granted in Wheeling

Managing Member David L. Wyant and Associate Benjamin P. Visnic

The Wheeling office successfully defended Plaintiff’s appeal in Swiger v. West Liberty University, Civ. A. 5:21-CV-188 (N.D. W. Va. 2021). Ms. Swiger alleged that she was discriminated against for the content of her speech, in violation of the First Amendment, and because of her age, in violation of the West Virginia Human Rights Act (“WVHRA”).

The lower court granted West Liberty’s Motion to Dismiss Ms. Swiger’s First Amendment claim and, after discovery, granted West Liberty’s Motion for Summary Judgment on the WVHRA claim. The Fourth Circuit Court of Appeals affirmed the lower court’s decision by Order on October 23, 2023. David L. Wyant and Benjamin P. Visnic successfully represented the defendants. 

Keeping you in the Know

Charleston Associate, Samuel M. Bloom

Case law update:  New Memorandum Decision from the Supreme Court of Appeals of West Virginia

The article this month focuses on a new Memorandum Decision from the Supreme Court of Appeals of West Virginia. In its September 15, 2023, decision in Anderson v. Wright, the Supreme Court of Appeals dealt with an appeal from the Circuit Court of Wood County, West Virginia, pertaining to the judicial sale of real property and the distribution of the net proceeds to the parties.

In the case, the parties each owned a 1/3^rd undivided interest in the real property. Ultimately, a dispute arose over the real property’s maintenance and upkeep and one of the parties filed a complaint asking the circuit court for a partition of the real property. After a bench trial, the court found that the property was not susceptible to a partition in kind and that none of the parties were willing to purchase the property through allotment. Thus, the circuit court ordered the property sold with the net proceeds distributed to the parties. A special commissioner was appointed and listed the real property with a realtor. The realtor subsequently received a written bid of $70,000 which was ultimately accepted as the highest bid.

At the confirmation hearing, however, the special commissioner informed the court that the $70,000 was reasonable but that the special commissioner received a report shortly after accepting the bid that a higher offer was going to be made. The circuit court heard testimony from two witnesses which revealed that the petitioner in this matter, one of the parties with an undivided interest in the property, made a late bid of $72,500. The circuit court held against the petitioner, finding that petitioner never made a written offer and that the sale for $70,000 that was accepted was commercially reasonable. Thus, petitioner appealed to the Supreme Court of Appeals seeking to overturn the decision of the circuit court and seeking to have their upset bid accepted as the highest offer.

The Supreme Court of Appeals upheld the circuit court’s decision. It based its ruling upon the fact that the lower court had discretion to confirm the sale of the real property for $70,000 and that its decision to do so was not plainly wrong. Thus, the Supreme Court of Appeals has upheld that the decision whether to honor an upset bid, like the one in the instant matter, clearly lies within the sound discretion of the circuit court and will not be disturbed unless the decision was plainly wrong.

Lawsuit Dismissed

Bailey & Wyant, PLLC's Partner Jordan K. Herrick

and Associate Samuel M. Bloom

Jordan K. Herrick and Samuel M. Bloom obtained dismissal on behalf of a physician at Mount Olive Correctional Complex on a lawsuit filed by an inmate alleging medical malpractice among other claims. The Circuit Court of Kanawha County dismissed the lawsuit, finding Plaintiff had not exhausted his administrative remedies prior to filing the lawsuit and did not follow the pre-suit requisites pertaining to a West Virginia MPLA claim.

Matter Dismissed

Charleston's Of Counsel, Albert "Abbie" C. Dunn, Jr.

Bailey & Wyant PLLC's Of Counsel, Albert, "Abbie" C. Dunn, Jr. defended a veterinarian before the Board of Veterinary Medicine regarding an administrative complaint with the Board regarding the veterinarian’s oversight of a surgical procedure performed on a dog with a substantial abdominal mass.  

It was alleged in the Complaint that the veterinarian who is the owner of the practice conspired with the attending veterinarian to perform an unnecessary surgery, and for which informed consent was not provided.  The Board of Veterinary Medicine dismissed the matter finding no probable cause of a violation of the standard of care.