Fred L. Fox

The case involved Linda Hardesty's convictions on eight counts related to possessing with intent to deliver, delivering, and conspiring to deliver LSD within 1000 feet of a school, based on three transactions with a confidential informant in 1993. Hardesty appealed, arguing that the multiple charges violated double jeopardy by punishing her multiple times for the same underlying offenses (three sales and one conspiracy) and that the trial court erred in admitting written transcripts of audio recordings made by police. The court agreed that the possession-with-intent and delivery counts were duplicative but found no double jeopardy violation because the sentences were run concurrently, rejected the claim that the two conspiracy counts were duplicative, and held that any error in admitting the transcripts was not plain error given the cautionary instructions and other evidence. The convictions and sentences were therefore affirmed.

criminal lawprocedure

In State v. Lilly, the defendants were charged with manufacturing and possessing controlled substances after police searched their home pursuant to a warrant obtained on the basis of a confidential informant's tip that they were growing marijuana. The defendants moved to suppress the evidence, arguing that the affidavit supporting the warrant was conclusory and failed to establish probable cause, and that the magistrate improperly considered information outside the affidavit. The circuit court denied the motion, leading the defendants to enter conditional guilty pleas. On appeal, the West Virginia Supreme Court of Appeals reversed, holding that the affidavit was insufficient on its face to support probable cause and that the suppression motion should have been granted.

criminal lawprocedure

The case involved Melvin Holstein, a 63-year-old employee discharged by Norandex, Inc., who alleged his termination was pretextual age discrimination under the West Virginia Human Rights Act after a younger employee was hired to replace him. Holstein sued both the company and his supervisor Michael Counts, claiming Counts aided and abetted the discrimination in violation of W.Va. Code § 5-11-9(7)(A). The circuit court dismissed Counts as a defendant, ruling that employees cannot be held individually liable under the Act, that the complaint lacked allegations of threats or reprisals, and that the employer was not a 'person' subject to aiding-and-abetting liability. On appeal, the West Virginia Supreme Court of Appeals considered whether the statute permits individual liability for supervisors who participate in discriminatory acts, rejecting the lower court's narrow interpretation of the term 'person' and the scope of the aiding-and-abetting provision.

civil rightslabor & employment

The case concerned a dispute between teacher Harry Hartman and the Mineral County Board of Education over whether the Board's Attendance Incentive Policy, which offered year-end bonuses for teachers with high attendance rates based on unused personal leave, became a binding element of the teachers' continuing employment contracts under West Virginia law. The circuit court had ruled in favor of Hartman that the policy was contractual and could not be unilaterally eliminated after April 1, but the Supreme Court of Appeals reversed that decision. The court held that the policy remained a unilateral board policy subject to elimination because the authorizing statute, W.Va. Code § 18A-4-10a, showed no legislative intent to incorporate such bonuses into contracts, and the parties never reached mutual agreement to treat the policy as contractual. The board had adopted the policy each year on its own initiative using reserve funds and discontinued it when funding was unavailable, without any evidence that either side viewed it as a contract term. The court therefore reinstated the grievance board's ruling allowing the policy's elimination.

labor & employment

This case involved a property damage lawsuit by Hall’s Park Motel, Inc. against Rover Construction, Inc. and related defendants, alleging that excavation for a sewage lift station in 1981 caused subsidence that damaged the motel’s foundation and structure. The trial court granted summary judgment to the defendants, finding the action barred by West Virginia’s two-year statute of limitations for property damage claims. The Supreme Court of Appeals affirmed, holding that the plaintiff had notice of permanent and irreparable damage by 1985 and that the injury did not qualify as a continuing tort that would delay the start of the limitations period. The court rejected arguments for tolling and noted that issues such as public taking or statutory duties were not preserved below.

propertytorts & liabilityprocedure

The case involved Peter DeRocchis and his wife suing his employer Matlack, Inc., terminal manager Leo Boats, and third-party defendant Strick Corporation for respiratory injuries allegedly caused by repeated workplace exposure to tolulene diisocyanate fumes from 1972 onward. The trial court granted summary judgment to the defendants, finding the claims barred by the two-year statute of limitations. On appeal, the court held that the action was timely filed only as to any tortious acts occurring within two years before the April 1990 complaint, but barred for earlier acts, because evidence showed DeRocchis had known since at least 1975 that the exposures caused his condition, making each discrete exposure a separate cause of action rather than a single continuing tort.

torts & liabilitylabor & employment