Davis, Robin Jean

Palmer, Louis J., Jr.

English

The Research Repository @ WVU (West Virginia University)

Volume 102 Issue 5 Issue 5, A Tribute to Thomas E. McHugh: An Encyclopedia of Legal Principles From His Opinions as a Justice of the West Virginia Supreme Court of Appeals Article 24 June 2002 West Virginia Supreme Court of Appeals Appellate Jurisdiction Robin Jean Davis West Virginia Supreme Court of Appeals Louis J. Palmer Jr. Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Jurisdiction Commons Recommended Citation Robin J. Davis & Louis J. Palmer Jr., West Virginia Supreme Court of Appeals Appellate Jurisdiction, 102 W. Va. L. Rev. (2002). Available at: https://researchrepository.wvu.edu/wvlr/vol102/iss5/24 This A Tribute to Thomas E. McHugh: An Encyclopedia of Legal Principles From His Opinions as a Justice of the West Virginia Supreme Court of Appeals is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. WEST VIRGINIA LAW REVIEWseventy-eight days before the general election.1 318XX. WEST VIRGINIA SUPREME COURT OF APPEALS APPELLATE JURISDICTIONA. Necessity of a Ruling by Lower CourtWells v. Roberts1 319 held that ["a]s a general rule '[t]his Court will notconsider questions, nonjurisdictional in their nature, which have not been actedupon by the trial court.' 1320 Justice McHugh elaborated on this issue in State v.Baker,1321 wherein he relied upon State v. Thomas1322 to hold:As a general rule, proceedings of trial courts are presumed to beregular, unless the contrary affirmatively appears upon the record,and errors assigned for the first time in an appellate court will notbe regarded in any matter of which the trial court had jurisdictionor which might have been remedied in the trial court if objected tothere.1323Justice McHugh ruled in State v. Glover 324 that[w]here the record on appeal is inconclusive as to whether counselfailed to investigate the sole possible defense or a material defenseadequately and with reasonable diligence, this Court will notdecide on such a record whether a criminal defendant was deniedeffective assistance of counsel but will remand the case fordevelopment of the record on the point and for a ruling by the trialcourt on the question.1325Justice McHugh wrote in Abbott v. Owens-Coming Fiberglas Corp.1326that "[in order for this Court to review a trial court's decision regarding theapplication of the doctrine forum non conveniens, it is necessary for the trial courtto provide a record in sufficient detail which will show the basis of its1318 Id. at Syl. Pt. 2.1319 280 S.E.2d 266 (W. Va. 1981).1320 Id. at Syl. Pt. 3 (alteration in original).1321 287 S.E.2d 497 (W. Va. 1982).1322 203 S.E.2d 445 (W. Va. 1974).1323 Baker, 287 S.E.2d at Syl. Pt. 1.1324 355 S.E.2d 631 (W. Va. 1987).1325 Id. at Syl. Pt. 3.1326 444 S.E.2d 285 (W. Va. 1994).[Vol. 1021Davis and Palmer: West Virginia Supreme Court of Appeals Appellate JurisdictionDisseminated by The Research Repository @ WVU, 2002A TRIBUTE TO THOMAS E. McHUGHdecision.", 1327B. Stay Pending AppealThe court held in State ex rel. Dye v. Bordenkircher 328 that[w]hen the Supreme Court of Appeals of West Virginia grants apetition for appeal all proceedings in the circuit court relating tothe case in which the petition for appeal has been granted arestayed pending this Court's decision in the case. Such stay ofproceedings is mandatory under W.Va. Code, 62-7-2 [1931].1329C. Costs on AppealJustice McHugh stated in Reager v. Anderson'330 that "[w]here the mattersdesignated for inclusion in the appellate record are relevant to the issues presentedby the appeal or cross-assignment(s) of error, this Court will not divide the costs ofreproducing the record."' 1D. Criminal Appeal GenerallyJustice McHugh held in Judy v. White"332 that "[s]ingle appeals to the WestVirginia Supreme Court of Appeals, regardless of the number of convictionsappealed from, for the purposes of W.Va. Code, 29-21-13a [1990], constitute asingle proceeding."'mE Appeal by State in Criminal ProceedingJustice McHugh stated in State v. Walters" 4 that "W.Va. Code, 58-5-30[1931] does not authorize an appeal to this Court by the State from a final order ofa circuit court dismissing a criminal complaint filed initially in magistratecourt.1033 51327 ALa at Syl. Pt. 4.1328 284 S.E.2d 863 (W. Va. 1981).1329 Id. at Syl. Pt. 2.1330 371 S.E.2d 619 (W. Va. 1988).131 Id. at Syl. Pt. 7.1332 425 S.E.2d 588 (W. Va. 1992).1333 Id. at Syl. Pt. 1.1334 411 S.E.2d 688 (W. Va. 1991).1335 Id. at Syl.Special]2West Virginia Law Review, Vol. 102, Iss. 5 [2002], Art. 24https://researchrepository.wvu.edu/wvlr/vol102/iss5/24WEST VIRGINIA LAW REVIEWF. Standards of Review1. Unemployment Compensation Board of Review DecisionIn the case of Kisamore v. Rutledge, 3 6 Justice McHugh held:Findings of fact by the Board of Review of the West VirginiaDepartment of Employment Security, in an unemploymentcompensation case, should not be set aside unless such findingsare plainly wrong; however, the plainly wrong doctrine does notapply to conclusions of law by the Board of Review. 3 7Justice McHugh restated Kisamore's standard of review in Ash v.Rutledge. 3 82. Parole Board DecisionIn Rowe v. Whyte,' 3 9 Justice McHugh wrote that[t]he decision to grant or deny parole is a discretionary evaluationto be made by the West Virginia Board of Probation and Parole.However, such a decision shall be reviewed by this Court todetermine if the Board of Probation and Parole abused itsdiscretion by acting in an arbitrary and capricious fashion. 34 03. Civil Service Commission DecisionRelying upon the decision in Billings v. Civil Service Commission,'34 'Justice McHugh ruled in West Virginia Department of Health v. Mathison 34 2 that"[a] final order of the Civil Service Commission based upon a finding of fact willnot be reversed by this Court upon appeal unless it is clearly wrong."'13431336 276 S.E.2d 821 (W. Va. 1981).1337 Id. at Syl. Pt. 1.1338 Syl. Pt. 2, Ash v. Rutledge, 348 S.E.2d 442 (W.Va. 1986).1339 280 S.E.2d 301 (W. Va. 1981).1340 Id. at Syl. Pt. 3.1341 178 S.E.2d 801 (W. Va. 1971).1342 301 S.E.2d 783 (W. Va. 1983).1343 Id. at Syl. Pt. 2.[Vol. 1023Davis and Palmer: West Virginia Supreme Court of Appeals Appellate JurisdictionDisseminated by The Research Repository @ WVU, 2002A TRIBUTE TO THOMAS E. McHUGH4. Ruling on Admitting ConfessionRelying on the decision in State v. Lamp,'3" Justice McHugh held in Statev. Wimer'145 that "[t]he trial court has a wide discretion as to the admission ofconfessions and ordinarily this discretion will not be disturbed on review."13465. Ruling on Improper Remarks by ProsecutorIt was held in State v. Ocheltree'347 that "[a] judgment of conviction willnot be reversed because of improper remarks made by a prosecuting attorney to ajury which do not clearly prejudice the accused or result in manifest injustice.""'3"6. Ruling on Constitutional IssueJustice McHugh said in State v. Gravely'349 that[t]he admission at trial of the testimony of a witness that heidentified an accused prior to trial at a police initiated line-up orpolice initiated one-on-one confrontation between the witness andthe accused, which pretrial identification procedure was aviolation of the accused's right to counsel under the SixthAmendment to the Constitution of the United States and under art.III, § 14, of the Constitution of West Virginia, constitutesreversible error, unless the admission of such testimony at trial isshown to be harmless constitutional error.1 3507. Ruling on Order Involving Bill of ParticularsJustice McHugh held in State v. Meadows351 that "[t]he ruling of a trialcourt concerning the sufficiency of a bill of particulars will not be reversed onappeal unless the trial court abused its discretion.',13 521344 254 S.E.2d 697 (W. Va. 1979).1345 284 S.E.2d 890 (W. Va. 1981).1346 Id. at Syl. Pt. 1.1347 289 S.E.2d 742 (W. Va. 1982).1348 Id. at Syl. Pt. 5.1349 299 S.E.2d 375 (W. Va. 1982).1350 Id. at Sy. Pt 3.1351 304 S.E.2d 831 (W. Va. 1983).1352 Id. at Syl. Pt. 5.Special]4West Virginia Law Review, Vol. 102, Iss. 5 [2002], Art. 24https://researchrepository.wvu.edu/wvlr/vol102/iss5/24WEST VIRGINIA LAW REVIEW8. Ruling on Proffer of Remote EvidenceJustice McHugh relied upon Yuncke v. Welker' 35 to hold in Gough v.Lopez 354 that[w]hether evidence offered is too remote to be admissible uponthe trial of a case is for the trial court to decide in the exercise of asound discretion; and its action in excluding or admitting theevidence will not be disturbed by the appellate court unless itappears that such action amounts to an abuse of discretion.3559. Ruling on Admissibility of Evidence GenerallyJustice McHugh held in State v. Peyattl356 that "[r]ulings on theadmissibility of evidence are largely within a trial court's sound discretion andshould not be disturbed unless there has been an abuse of discretion.'135710. Ruling on Joint Representation in Criminal CasesJustice McHugh held in State v. Mullins1358:When a trial court fails to follow the requirements of Rule 44(c) ofthe West Virginia Rules of Criminal Procedure, this Court willreview the record to determine if any conflict likely existedbetween the jointly represented parties rather than to determinewhether there is an actual conflict. If, after reviewing the record,this Court determines no conflict likely existed between the jointlyrepresented parties, such joint representation will not be deemedreversible error.'35911. Imposition of Sanctions in Civil CasesBell v. Inland Mutual Insurance Co.1360 held that1353 36 S.E.2d 410 (W. Va. 1945).1354 304 S.E.2d 875 (W. Va. 1983).1355 Id. at Syl.1356 315 S.E.2d 574 (W. Va. 1983).1357 Id. at Syl. Pt. 2.1358 383 S.E.2d 47 (W. Va. 1989).1359 Id. at Syl. Pt. 6.1380 332 S.E.2d 127 (W. Va. 1985).[Vol. 1025Davis and Palmer: West Virginia Supreme Court of Appeals Appellate JurisdictionDisseminated by The Research Repository @ WVU, 2002A TRIBUTE TO THOMAS E. McHUGH[t]he imposition of sanctions by a circuit court underW.Va.R.Civ.P. 37(b) for the failure of a party to obey the court'sorder to provide or permit discovery is within the sound discretionof the court and will not be disturbed upon appeal unless there hasbeen an abuse of that discretion.136112. Declaratory Judgment OrderIn Cox v. Amick,1362 Justice McHugh held that "[a] circuit court's entry ofa declaratory judgment is reviewed de novo.""'313. Plenary Review of Circuit Court Findings and ConclusionsJustice McHugh indicated in Burgess v. Porterfield1364 that "[t]his Courtreviews the circuit court's final order and ultimate disposition under an abuse ofdiscretion standard. We review challenges to findings of fact under a clearlyerroneous standard; conclusions of law are reviewed de novo.'136514. Education and State Employees Grievance Board RulingIn Quinn v. West Virginia Northern Community College,13 66 JusticeMcHugh held that "[a] final order of the hearing examiner for the West VirginiaEducation and State Employees Grievance Board, made pursuant to W.Va. Code,29-6A-1, et seq. [1988], and based upon findings of fact, should not be reversedunless clearly wrong." 136715. Decision of Board of Law ExaminersJustice McHugh wrote in Matter ofDortch13 66 that[t]his Court reviews de novo the adjudicatory record made beforethe West Virginia Board of Law Examiners with regard toquestions of law, questions of application of the law to the facts,and questions of whether an applicant should or should not be1361 1I at Syl. Pt. 1.1362 466 S.E.2d 459 (W. Va. 1995).1363 Ila t Syl. Pt. 3.1364 469 S.E.2d 114 (W. Va. 1996).1365 ladat Syl. Pt. 4.1366 475 S.E.2d 405 (W. Va. 1996).1367 Id. at Syl.1368 486 S.E.2d 311 (W. Va. 1997).Special)6West Virginia Law Review, Vol. 102, Iss. 5 [2002], Art. 24https://researchrepository.wvu.edu/wvlr/vol102/iss5/24WEST VIRGINIA LAW REVIEWadmitted to the practice of law. Although this Court givesrespectful consideration to the Board of Law Examiners'recommendations, it ultimately exercises its own independentjudgment. On the other hand, this Court gives substantialdeference to the Board of Law Examiners' findings of fact, unlesssuch findings are not supported by reliable, probative, andsubstantial evidence on the whole record.1369H. Notice of Plain ErrorJustice McHugh held in State v. Hutchinson1370 that[a]lthough this Court may, under Rule 30 of the West VirginiaRules of Criminal Procedure, notice plain error in the giving of anerroneous instruction (in the absence of a proper and timelyobjection at trial), this Court will not ordinarily recognize plainerror under such circumstances, even of constitutional magnitude,where the giving of the erroneous instruction did not substantiallyimpair the truth-finding function of the trial.' 371I. Moot IssuesRelying on State ex rel. M.C.H. v. Kinder,1372 Justice McHugh held in Stateex rel. J.D. W. v. Harris1373 that[a] case is not rendered moot even though a party to the litigationhas had a change in status such that he no longer has a legallycognizable interest in the litigation or the issues have lost theiradversarial vitality, if such issues are capable of repetition and yetwill evade review. 374J. Withdrawal of CounselJustice McHugh indicated in Summers County Citizens League, Inc. v.Tassos 1375 that "[a]n attempt by one of a number of plaintiffs/appellants towithdraw from the case after the final decree and after entry of the appeal in the1369 Id. at Syl. Pt. 2.1370 342 S.E.2d 138 (W. Va. 1986).1371 Id. at Syl. Pt. 2.1372 317 S.E.2d 150 (W. Va. 1984).1373 319 S.E.2d 815 (W. Va. 1984).1374 Id. at Syl. Pt. 1.1375 367 S.E.2d 209 (W. Va. 1988).[Vol. 1027Davis and Palmer: West Virginia Supreme Court of Appeals Appellate JurisdictionDisseminated by The Research Repository @ WVU, 2002A TRIBUTE TO THOMAS E McHUGHappellate court comes too late and usually will be disregarded. ' 1378K. Recusal of JusticeJustice McHugh stated in State ex rel. Hash v. McGraw1377 that[t]he administrative actions of the Chief Justice of the SupremeCourt of Appeals of West Virginia in a particular case do notnecessarily represent a pecuniary or personal interest that wouldaffect the Chief Justice's impartiality, nor render the Chief Justiceincapable of hearing the same case in ajudicial capacity.1378L. Unpublished OpinionsJustice McHugh stated in Pugh v. Workers' CompensationCommissioner1379 that "[u]npublished opinions of this Court are of no precedentialvalue and for this reason may not be cited in any court of this state as.precedent orauthority, except to support a claim of res judicata, collateral estoppel, or law ofthe case."1380M. Interlocutory OrdersJustice McHugh stated in State ex rel. Arrow Concrete Co. v. Hill1381 that"[o]rdinarily the denial of a motion for failure to state a claim upon which reliefcan be granted made pursuant to West Virginia Rules of Civil Procedure 12(b)(6) isinterlocutory and is, therefore, not immediately appealable.'1382XXI. WEST VIRGINIA SUPREME COURT OF APPEALS ORIGINAL JURISDICTIONA. Writ of MandamusJustice McHugh held in West Virginia Board of Education v. Hechler1383that "[m]andamus may be used to attack the constitutionality or validity of a statute1376 Id. at Syl. Pt. 1.1377 376 S.E.2d 634 (W. Va. 1988).1378 Id. at Syl. Pt. 2.1379 424 S.E.2d 759 (W. Va. 1992).1380 Id. at Syl. t 3.1381 460 S.E.2d 54 (W. Va. 1995).1382 Id. at Syl. PL 2.1383 376 S.E.2d 839 (W. Va. 1988).Special]8West Virginia Law Review, Vol. 102, Iss. 5 [2002], Art. 24https://researchrepository.wvu.edu/wvlr/vol102/iss5/24

West Virginia Supreme Court of Appeals Appellate Jurisdiction

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West Virginia Supreme Court of Appeals Appellate Jurisdiction

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