Since the creation of the State of West Virginia, the West Virginia Supreme Court has provided the only review of the decisions of the trial courts and administrative agencies. That meant that the West Virginia Supreme Court was the only court that created binding case law. While Article VIII of the West Virginia Constitution has long authorized the creation of “such intermediate appellate courts … as shall be hereafter established by the Legislature,” the legislature for decades had declined to act upon that authorization. That all changed in 2021 when Governor Justice signed Senate Bill 275, which created the West Virginia Intermediate Court of Appeals.
The new Intermediate Court of Appeals will have three judges, who will initially be appointed by the governor. Each seat will eventually be elected on a non-partisan basis for ten-year terms, with staggered elections starting in 2024. The first three judges are Thomas E. Scarr of Huntington, Daniel W. Greear of Charleston, and Donald A. Nickerson Jr. of Wheeling. A new courtroom has been constructed in the City Center East building in Charleston, but the Intermediate Court of Appeals is also empowered to hear arguments in other locations as well as virtually. The court has selected Grant County (Petersburg), Lewis County (Weston), Morgan County (Berkeley Springs), Raleigh County (Beckley), and Wetzel County (New Martinsville) to host satellite courtrooms for virtual arguments with the judges in Charleston. The goal was to make it that no one in West Virginia would have to drive more than 90 minutes to reach an Intermediate Court of Appeals courtroom.
The jurisdiction of the Intermediate Court of Appeals is exclusively civil and exclusively appellate. The new court has no original jurisdiction and holds appellate jurisdiction over final judgments in civil cases, family-court cases, guardianship and conservatorship matters, and certain agency appeals, including appeals from the Health Care Authority, Insurance Commissioner, and Workers’ Compensation Board of Review. Criminal appeals will continue be heard only by the West Virginia Supreme Court, which will also continue to hear all appeals in juvenile, commitment, child-neglect, and domestic-violence matters.
The new Intermediate Court of Appeals will issue written decisions in each appeal, which will be binding precedent on all lower courts and agencies unless they are overruled or modified by the West Virginia Supreme Court. Appeals from the Intermediate Court of Appeals to the West Virginia Supreme Court will be by petition, and the West Virginia Supreme Court has the discretion to grant or deny any appeal. Changes to the West Virginia Rules of Appellate Procedure are pending.
One of the goals of the creation of the Intermediate Court of Appeals was to expand the body of West Virginia judicial precedent, with more opinions providing more guidance on more areas of civil law. The new Intermediate Court of Appeals will also lighten the caseload of the West Virginia Supreme Court and allow the West Virginia Supreme Court to focus on difficult and influential decisions instead of spending its time correcting trial-court errors and weeding out frivolous appeals. For civil cases, the West Virginia Supreme Court will transition from an error-correcting court to a court that only accepts significant disputes for decision.
With a new court, new rules, and new procedures, July 1, 2022, will mark one of the most significant dates in the history of the West Virginia judiciary.
The litigation attorneys at Houston Harbaugh, P.C., are accomplished business trial lawyers, providing comprehensive support in litigation across a broad spectrum of matters throughout Pennsylvania, West Virginia, Ohio and other jurisdictions upon a special admission basis. Our clients are regional and national small, medium and large companies and individuals who seek well planned and aggressive, but cost effective litigation. We counsel, we budget, we have a deep bench, we act quickly when needed and we have experienced trial lawyers who know the courts and bench. We serve regularly as local counsel for some of the largest law firms in the country when they have matters in this region.
Henry M. Sneath
Co-Chair of Houston Harbaugh’s Litigation Practice, and Chair of its Intellectual Property Practice, Henry Sneath is a trial attorney, mediator, arbitrator and Federal Court Approved Mediation Neutral and Special Master with extensive federal and state court trial experience in cases involving commercial disputes, breach of contract litigation, intellectual property matters, patent, trademark and copyright infringement, trade secret misappropriation, DTSA claims, cyber security and data breach prevention, mitigation and litigation, probate trusts and estates litigation, construction claims, eminent domain, professional negligence lawsuits, pharmaceutical, products liability and catastrophic injury litigation, insurance coverage, and insurance bad faith claims.
Samuel H. Simon
As co-chair of Houston Harbaugh’s Litigation Group, Sam focuses his practice on commercial/business litigation. Sam regularly represents clients in the construction, manufacturing, oil and gas, and wholesale/retail/ distribution industries, as well as individuals in matters such as:
- Construction litigation
- Environmental litigation
- Breach of contract disputes
- Oil and gas litigation
- Restrictive covenants (non-compete agreements)
- Civil rights
- Collections/creditors’ rights
- Lease disputes