WEST VIRGINIA APPELLATE PROCEDURE
HANNAH B. CURRY
JOANNA I. TAB IT
Steptoe & Johnson PLLC

TABLE OF CONTENTS

I. INTRODUCTION
A. JURISDICTION OF SUPREME COURT OF APPEALS
B. APPELLATE REVIEW OF ADMINISTRATIVE TRIBUNALS
C. APPELLATE REVIEW OF FAMILY COURT DECISIONS
II. APPELLATE PROCEDURE IN WEST VIRGINIA
A. RULES OF CIVIL PROCEDURE
C. ADMINISTRATIVE PROCEDURES ACT
D. RULES OF APPELLATE PROCEDURE
E. ORIGINAL JURISDICTION PROCEDURE
F. APPEAL TO THE UNITED STATES SUPREME COURT

I. INTRODUCTION

Although most of our law school course work was focused on the scrutiny of
appellate opinions, appellate practice and procedure is still a mystery to many practicing
lawyers. This chapter is designed to provide an examination of the steps in the appellate
process in West Virginia. It includes a discussion of the rules of civil procedure, rules of
criminal procedure, rules of appellate procedure and relevant statutes that provide the
blueprint for appellate practice and procedure in the state. Additionally, it provides a brief
overview of the appeal process under the Administrative Procedures Act and includes a
discussion of original jurisdiction procedure. Procedures to certify a question are excluded
from this chapter.2

The scope of this chapter is generally limited to a discussion of appellate procedure
in an ordinary civil or criminal action. Because the chapter is abbreviated, and further
because pertinent rules and statutes may have been amended after these materials were
prepared, counsel is advised in all instances to consult theW est Virginia Rules of Appellate
Procedure, the state rules of civil and criminal procedure, and relevant state statutory and
constitutional provisions. 3

A. JURISDICTION OF SUPREME COURT OF APPEALS.

The Supreme Court of Appeal’s jurisdiction is defined in Article VIII, § 3 of the
Constitution of West Virginia as well as recognized in the West Virginia Rules of Appellate
Procedure and statutory provisions such as W.Va. Code§ 51-1-3 and W.Va. Code§ 58-5-1.
The constitutional provision confers original jurisdiction for common-law writs of habeas
corpus, mandamus, prohibition, and certiorari and appellate jurisdiction in civil and
criminal case. It also confers appellate jurisdiction in proceedings in quo warranto, habeas
corpus, mandamus, prohibition and certiorari. Any other jurisdiction exercised by the
1The authors gratefully acknowledge the assistance of Ancil G. Ramey, Esquire, former Clerk of
the Supreme Court of Appeals, in preparation of this chapter.
2 See Rule 13 of the West Virginia Rules of Appellate Procedure and W. Va. Code § 58-5-2.
3Under Article VIII, [and Section 3] of the Constitution of West Virginia (commonly known as
the Judicial ReorganizationAmendment), administrative rules promulgated by the Supreme Court
of Appeals of West Virginia have the force and effect of statutory law and operate to supersede any
law that is in conflict with them.” Bennett v. Warner, 179 W.Va. 742, 745, 372 S.E.2d 920, 923
(1988) (citations omitted). See, e.g., Cable v. Hatfield, 202 W.Va. 638,643,505 S.E.2d 701,706
(1998) (“We therefore hold that, W.Va. Code§ 56-4-36 (1923) (Repl. Vol. 1997) is superseded by
Rule 7(c) and Rule 71 B(a) of the West Virginia Rules of Civil Procedure insofar as that statute
relates to extraordinary remedies.”).

Supreme Court of Appeals is done pursuant to statutory enactment. There can be no writ
of error or appeal except in those cases warranted by the Constitution or statutes. 4
There is no constitutional right of appellate review in West Virginia. The Supreme
Court of Appeals has recognized that appellate review is not essential as long as due process
has been accorded at the trial level. 5 More recently, the Supreme Court of Appeals held that
“West Virginia does not grant a criminal defendant a first appeal of right, either statutorily
or constitutionally. However, our discretionary procedure of either granting or denying a
final full appellate review of a conviction does not violate a criminal defendant’s guarantee
of due process and equal protection of the law. “6 Because appellate review in West Virginia
is not absolute, exercise of appellate jurisdiction by the Supreme Court of Appeals is
completely discretionary.7 Additionally, the exercise of the Supreme Court of Appeals’
original jurisdiction, consisting of writs of mandamus, prohibition, habeas corpus, and
certiorari, is completely discretionary. 8

Given the discretionary nature of the Supreme Court of Appeals’ jurisdiction, both
appellate and original jurisdiction cases follow a two-step process. First, a petition for
appeal or writ, which is filed and presented exparte, must be granted by at least a tie vote
(2-2 of the five Justices of the Supreme Court of Appeals). If the petition for appeal or writ
is refused, the case is concluded. However, if the petition for appeal or writ is granted, the
case goes to step two. In the second step, the case is set for oral argument or submission
on the briefs following the filing of briefs or memorandum oflaw. The second stage of the
procedure will be discussed more fully later in this chapter.

B. APPELLATE REVIEW OF ADMINISTRATIVE TRIBUNAL DECISIONS.

The Supreme Court of Appeals’ review of final decisions of administrative agencies
is purely statutory.9 Some administrative agencies have internal appellate mechanisms;
however, direct appellate review of administrative decisions may also be performed by (1)
4State v. Bailey, 154 W.Va. 25, 173 S.E.2d 173 (1970), overruled on other grounds, State v.
Walters, 186 W.Va. 169, 411 S.E.2d 688 (1991).
5State v. Legg, 151 W.Va. 401, 151 S.E.2d 215 (1966).
6Syl. pt. 4, Billotti v. Dodrill, 183 W.Va. 48, 394 S.E.2d 32 (1990); see also Billotti v. Legursky,
975 F.2d 113 (4th Cir. 1992), cert. denied,_ U.S. __ , 113 S. Ct 1578, 123 L. Ed.2d 146 (1993).
7W. Va. Code§ 58-5-1; Pettry v. Boles, 275 F. Supp. 744 (N.D. W.Va. 1967).
8State ex rel. McGraw v. Telecheck 213 W.Va. 438, 443 n.3, 582 S.E.2d 885, 890 n.3 (2003);
State ex rel. Doe v. Troisi, 194 W.Va. 28, 32, 459 S.E.2d 139, 143 (1995). See also State ex rel.
Richey v. Hill, 216 W.Va. 155, 175, 603 S.E.2d 177, 197 (2004) (Maynard, J., concurring).
9See e.g. Howell v. Public Service Commission, 78 W.Va. 664, 90S. E. 105 (1916) (authority of
Supreme Court of Appeals to review proceedings of Public Service Commission is purely statutory).

circuit courts in the county in which a party or the administrative agency is located; (2) the
Circuit Court of Kanawha County by virtue of its location in the county in which the state
capitol is situated; or (3) the Supreme Court of Appeals. Counsel should be cautioned that
appeal periods vary from agency to agency and may be anywhere from thirty days to four
months. Therefore, counsel is advised to refer to the specific enabling statutes of the
pertinent agency as well as the West Virginia Code of State Rules and regulations pertaining
to the agency.

Appeal lies to the Circuit Court of Kanawha County or other circuit courts from
various types of administrative tribunals such as the Board of Review of Employment
Security Commission, which reviews decisions of administrative law judges on claimant
eligibility or qualification for unemployment compensation benefits;10 the Commissioner
of the Division of Motor Vehicles, who handles license suspensions and revocations; 11 and
the Tax Commissioner, who hears appeals of tax assessments.12

Additionally, there are administrative tribunals from which a direct appeal lies to the
Supreme Court of Appeals. These include the Workers’ Compensation Board of Review,
which reviews decisions of administrative law judges on claims for workers’ compensation
benefits;13 the Public Service Commission, which reviews decisions of hearing examiners
in proceedings involving the regulation of public utilities, common carriers and related
industries;14 and the Human Rights Commission, which reviews decisions of hearing
examiners in proceedings involving charges of discrimination.15 Appeal from these
administrative tribunals must be taken within thirty days.

10 See W.Va. Code§ 21A-7-17 (judicial review by circuit court of Kanawha county); W.Va. Code
§ 21A-7-27 (“The judgment of the circuit court shall be final unless reversed, vacated or modified
on appeal to the supreme court of appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.”).

11 See W.Va. Code,§ 17C-5A-2 (providing for “judicial review as set forth in [the Administrative
Procedures Act,] chapter twenty-nine-a of this code.”); W.Va. Code,§ 29A-5-4 (judicial review of
contested cases); W.Va. Code § 29A -6-1 (“Any party adversely affected by the final judgment of the –
circuit court under this chapter may seek review thereof by appeal to the supreme court of appeals
of this state, and jurisdiction is hereby conferred upon such court to hear and entertain such
appeals upon application made therefor in the manner and within the time provided by law for civil
appeals generally.”).

12 See W. Va. Code § 11-10-10 (governing_ appeals of administrative decisions of tax
commissioner).
13See W.Va. 23-5-15 and W.Va. R. App. P. 13A.
14See W.Va. Code§ 24-5-1.
15See W.Va. Code 5-11-11.

C. APPELLATE REVIEW OF FAMILY COURT DECISIONS.

Rule 13B of the Rules of Appellate Procedure provides the process for appealing a
final order of a family court directly to the Supreme Court of Appeals and for transferring
a family court appeal in the circuit court to the Supreme Court of Appeals. For a direct
appeal under subsection (a), the parties have only 14 days after entry of a final order to file
with the circuit clerk a notice of intent to appeal directly to the Supreme Court of Appeals
and waiver of their right to appeal to the circuit court. The notice and waiver can be jointly
or separately filed, but it must be the same or substantially similar to the form contained
in Appendix A of the Rules of Practice and Procedure for Family Court. Subsection (b)
addresses the procedure for transferring a family court appeal from a circuit court that has
failed to timely enter an order. For the specific requirements in both cases, counsel is
advised to refer to Rule 13B of the Rules of Appellate Procedure, the Rules of Practice and
Procedure for Family Court, and any applicable statutory provisions.

II. APPELLATE PROCEDURE IN WEST VIRGINIA

Because there is no intermediate appellate court in West Virginia, appellate
procedure in this State is relatively straightforward. This section of the chapter will focus
on the West Virginia Rules of Civil Procedure, West Virginia Rules of Criminal Procedure,
the West Virginia Administrative Procedures Act, and the West Virginia Rules of Appellate
Procedure, and will also provide a discussion of original jurisdiction procedure before the
Supreme Court of Appeals.

A. RULES OF CIVIL PROCEDURE.

1. Final Judgment.
Pursuant to Rule 72 of the West Virginia Rules of Civil Procedure, “[t]he full time for
filing a petition for appeal commences to run and is to be computed from the entry of any
of the following orders made upon a timely motion under such rules: Granting or denying
a motion for judgment under Rule 50(b ); or granting or denying a motion under Rule 52(b)
to amend or make additional findings of fact, whether or not an alteration of judgment
would be required if the motion were granted; or granting or denying a motion under Rule
59 to alter or amend the judgment; or granting or denying a motion for a new trial under
Rule 59.” When none of these motions is made or timely made, the time for appeal is
computed from the entry ofjudgment.16
Rule 54(a) of the West Virginia Rules of Civil Procedure defines the term “judgment”
as a “decree and any order from which an appeal lies.” Rule 58 of the West Virginia Rules
of Civil Procedure directs circuit courts to “promptly settle or approve the form of the
judgment and sign it as authority for entry by the clerk.” The signature does not constitute
16See Sothen v. Continental Assurance Co., 147W. Va. 458, 128 S.E.2d 458 (1962); West Virginia
Department of Energy v.Hobet Mining &Construction Co., 178 W.Va. 262,358 S.E.2d823 (1987).

entry of judgment. Instead, Rule 58 provides that “[t]he clerk, forthwith upon receipt of
the signed judgment, shall enter it in the civil docket …. The notation of a judgment in the
civil docket . . . constitutes the entry of the judgment; and the judgment is not effective
before such entry.” The failure of a circuit clerk to notify the parties of entry of judgment
does not extend the time for appeal.17

2. Interlocutory Orders.

Interlocutory orders cannot be appealed to the Supreme Court of Appeals except in
those cases warranted by W.Va. Code §58-5-1 which has been incorporated into Rule 54(b)
of the West Virginia Rules of Civil Procedure.18 This code section provides that “[a] party
to a civil action may appeal to the Supreme Court of Appeals … from an order of any circuit
court constituting a final judgment as to one or more but fewer than all claims or parties
upon an express determination by the circuit court that there is no just reason for delay and
upon an express direction for the entry of judgment as to such claims or parties.” Whether
an order is interlocutory or final in nature or appealable is a legal issue that must be
researched and determined by counsel. Generally speaking, however, it is an appeal from
a final order that brings up for review all interlocutory orders in an action.19

3 Post-Verdict Motions.

a. Motion for Judgment Notwithstanding the Verdict. Following
entry of judgment by the circuit clerk under Rule 58 of the West Virginia Rules of Civil
Procedure, a party wishing to challenge the judgm~nt may file a motion for judgment as a
matter oflaw under Rule 50(b) of the West Virginia Rules of Civil Procedure. This motion
must be filed within 10 days. In order to request the Rule 50(b) motion, the party must
have moved for a directed verdict at the close of all evidence. In ruling on a renewed motion
when a verdict was returned, Rule 50(b)(1) provides that the trial court may allow the
judgment to stand, order a new trial, or direct entry of judgment as a matter of law. In
ruling on a renewed motion when no verdict was returned, Rule 50(b )(2) provides that the
trial court may order a new trial or direct entry of judgment as a matter oflaw.
Additionally, under Rule 50(b ), a party may alternatively request a new trial or join
a motion for new trial under Rule 59 of the West Virginia Rules of Civil Procedure. If a trial
court grants a renewed motion for judgment as a matter of law that was joined with an
alternative request or motion for new trial, Rule 50(c)(1) provides that the trial court must
also conditionally rule on the motion for new trial in the event its grant of judgment as a
matter of law is subsequently vacated or reversed on appeal. Otherwise, if entry of
judgment as a matter of law is reversed, the Supreme Court of Appeals may reinstate the
17See Sothen v. Continental Assurance Co., 147 W.Va. 458, 128 S.E.2d 458 (1962).
18See Kanawha Lodge v. Swann, 37 W.Va. 176, 16 S. E. 462 (1892).
19See Watson v. Wigginton, 28 W.Va. 533, 1886 WL 1837 (1886).

jury’s verdict and enter judgment, order a new trial, or remand the case to the trial court to
consider the motion for new trial. 20
b. Motion for Amendment of Judgment. A judgment may also be
challenged under Rule 52 (b) of the West Virginia Rules of Civil Procedure which allows
amendment of judgment. Under Rule 52 (b), “[u]pon a party’s motion filed not later than
10 days after entry of judgment the court may amend its finding or make additional findings
and may amend the judgment accordingly.” Rule 52(b) further provides that this motion
may be made independently or may be made with a motion for new trial pursuant to Rule
59 of the West Virginia Rules of Civil Procedure. The purpose of Rule 52 (b) is to give the
trial court “an opportunity to correct manifest errors of law or fact at trial, or in some
limited situations, to present newly discovered evidence.”21 The purpose of the rule is not
“to allow the parties to relitigate old issues, to advance new theories, or to rehear the merits
of a case.”22

c. Motion to Alter f Amend Judgment or for New Trial. Judgments
may also be challenged under Rule 59 of the West Virginia Rules of Civil Procedure on a
motion to alter or amend a judgment or a motion for a new trial. The rule covers grounds
for new trial, time for motion, time for filing affidavits, on initiative of court, motion to alter
or amend judgment, and the effect of failure to move for new trial. 23 Consistent with
motions under Rules 50(b) and 52 (b), a motion for new trial under Rule 59(b) or to alter
or amend judgment under Rule 59(e) must be filed within 10 days after entry of judgment.
A motion for new trial may be joined with a motion under Rules 50(b) or 52(b ), or
can be filed independently of either motion. Failure to file a motion for new trial does not
automatically preclude appeal. Counsel should be cautioned, however, that Rule 59(f)
provides, in pertinent part: “If a party fails to make a timely motion for a new trial … the
party is deemed to have waived all errors occurring during the trial which the party might
have assigned as grounds in support of such motion …. ” An important exception to this
presumption is that “if a party has made a motion under Rule 50(b) for judgment in
accordance with the party’s motion for judgment as a matter of law and such motion is
denied, the party’s failure to move for a new trial is not a waiver of error in the court’s
denying or failure to grant such motion for judgment as a matter oflaw.” W.Va. R. Civ. P.
59(f). Clearly, it is advisable to file a joint motion under all three rules, 50(b ), 52(b) and 59,
20See McClung v. Marion County Comm’n, 178 W.Va. 444, 360 S.E.2d 221 (1987).
21United States v. Local1804-1, Int’l Longshoremen’sAss’n, 831 F. Supp. 167 (S.D. N.Y. 1993).
22Diebitz v. Arreola, 834 F. Supp. 298 (E. D. Wis. 1993).
23See also W.Va. Code§ 56-6-28 as to new trials.

in order to avoid any question regarding waiver. Rule 59(f) has no application, however,
to actions tried by a court without a jury. 24
A motion to alter or amend judgment should not be designated as a motion to
“reconsider”, “vacate”, “set aside”, or any other label other than a Rule 59( e) motion to alter
or amend judgment. Otherwise, the motion may be treated as either a Rule 59( e) motion
to alter or amend judgment, which tolls the appeal period, or a Rule 6o(b) motion for relief
from judgment, which does not toll the appeal period. If the motion is filed within 10 days
after entry of judgment, the motion should be treated as a Rule 59(e) motion to alter or
amend judgment. If the motion is filed outside the 10 day limit, it can only be addressed
as a Rule 6o(b) motion for relief from judgment. 25 Additionally, a motion to alter or amend
judgment as to fewer than all of the claims adjudicated tolls the appeal period only for the
claims contained in the Rule 59( e) motion.26

d. Motion for Relief from Judgment. In addition to the motions
described more particularly above, a party may seek relief from judgment under Rule 6o(b)
of the West Virginia Rules of Civil Procedure. Under Rule 6o(b ), relief from judgment may
be obtained if “made within a reasonable time” and “not more than one year after the
judgment, order, or proceeding was entered or taken” if relief from judgment is for
mistake, inadvertence, surprise, excusable neglect, unavoidable cause, newly discovered
evidence which by due diligence could not have been discovered in time to move for a new
trial under Rule 59(b), fraud, misrepresentation, or misconduct. Counsel should be
cautioned that a Rule 6o(b) motion does not toll the appeal period.27 The purpose of Rule
6o(b) is not to allow the parties to reargue facts and theories upon which a court has already
ruled.28 Additionally, an appeal from a denial of a Rule 6o(b) motion raises only the issue
of the propriety of such denial, and does not question the underlying judgment. 29
24Mahoney v. Walter, 157 W.Va. 882, 205 S.E.2d 692 (1974).
25See Powderidge Unit OwnersAss’n v. Highland Properties, Ltd., 196 W.Va. 692,474 S.E.2d
872 (1996); Savage v. Booth, 196 W.Va. 64, 468 S.E.2d 318 (1996).
26See Kentucky Fried Chicken of Morgantown, Inc. v. Sellaro, 158 W.Va. 708, 214 S.E.2d 823
(1975); Dixon v. American Industrial Leasing Co., 157 W.Va. 735, 205 S.E.2d 4 (1974).
27See Riffe v. Armstrong, 197 W.Va. 626, 477 S.E.2d 535 (1996).
28Powderidge Unit OwnersAss’n v. Highland Properties, Ltd., 196 W.Va. 692, 474 S. E. 2d 872
(1996).
29Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).
4· Extraordinary Remedies.
The Supreme Court of Appeals exercises its appellate jurisdiction over circuit court
extraordinary remedy rulings in the same manner as any other appellate review of circuit
court action.

5 Notice of Appeal.

In civil cases, there is no requirement for filing of a notice of appeal. The actual filing
of a petition for appeal, not a notice of appeal, tolls the running of the appeal period. An
exception is family court cases under Rule 26 of the Rules of Practice and Procedure for
Family Court. Within fourteen days after entry of a final order, both parties must either
jointly or separately file a notice of intent to appeal and waiver of right to appeal to the
circuit court if they wish to appeal directly to the Supreme Court of Appeals. If only one of
the parties files a notice and waiver, any petition for appeal filed will be treated as a petition
fat appeal to the circuit court.

6. Designation of Record.

Rule 73(a) of the West Virginia Rules of Civil Procedure was adopted on June 26,
1990, in order to expedite the appellate process. Prior to that time, the designation of
record was not filed with the circuit clerk until the petition for appeal was filed, frequently
delaying preparation of the record for transmittal. Under Rule 73(a), the petitioner must,
at the time of filing a petition for appeal, “designate by itemization to the clerk of the circuit
court such pleadings, orders and exhibits … to enable the Supreme Court of Appeals to
decide the matters arising in the petition.” Although common practice is to designate the
entire record, counsel is advised to limit designation of the record to those portions relevant
to the issues to be presented on appeal.

7. Preparation of the Transcript.

Under Appendix B (II)(B) of the West Virginia Rules of Appellate Procedure, the
petitioner must, within 30 days of judgment or order, “request from the court reporter such
transcript of the proceedings as he or she deems necessary using the Appellate Transcript
Request form approved by the Supreme Court of Appeals.” The petitioner must obtain from
the court reporter an estimate of the length of transcripts and make appropriate financial
arrangements with the court reporter. The petitioner may satisfy this requirement “(1) by
immediate payment in full or by another payment arrangement acceptable to the court
reporter; [or] (2) by filing, in appropriate cases, an affidavit of indigency with the circuit
clerk’s office.” Once the arrangements have been made, “[p]ayment or acknowledgment of
financial arrangements satisfactory to the court reporter must accompany the court
reporter’s copy of the Appellate Transcript Request.” For each court reporter from whom
a transcript is requested, a petitioner is obligated to complete an Appellate Transcript
Request, retain a copy, and send copies to the Clerk of the Supreme Court of Appeals, the
respondent, the circuit clerk, and the court reporter.

Under Appendix B (II)(C), if a transcript or parts of a proceeding are not designated
by the petitioner but deemed necessary, the respondent may ask the court reporter to
prepare the transcript in the same manner as required of the petitioner. If the respondent
wants a copy of a transcript which has been requested by the petitioner, he or she should
ask the court reporter for a copy and satisfy the necessary financial arrangements before
obtaining the copy. The petitioner has no obligation to request or pay for a copy of a
transcript for respondent.
Upon receipt of the Appellate Transcript Request form by the Supreme Court of
Appeals, the due date is calculated at 45 days from the court reporter’s receipt of the order,
and the information is placed in a computer program for tracking the production of
transcripts. If the transcript cannot be completed within 45 days of the receipt of the order,
the court reporter shall request an extension of time from the Clerk, and the action of the
Clerk is entered on the docket and the parties notified.

B. RULES OF CRIMINAL PROCEDURE.

1. Post-Verdict Motions.

a. Motion for Judgment of Acquittal. Judgments in criminal cases may
be challenged by post-trial motions similar to civil judgments. Rule 29(c) of the West
Virginia Rules of Criminal Procedure provides that “[i]f the jury returns a verdict of guilty
or is discharged without having returned a verdict, a motion for judgment of acquittal may
be made or renewed within ten days after the jury is discharged or within such further time
as the court may fix during the ten -day period.” If a verdict of guilty is returned, the court
may set aside the verdict or enter judgment of acquittal. If no verdict is returned, the court
may enter judgment of acquittal. The rule further provides that “[i]t shall not be necessary
to the making of such a motion that a similar motion has been made prior to the submission
of the case to the jury.”

b. Motion for New Trial. Rule 33 of the West Virginia Rules of Criminal
Procedure provides another way of challenging a criminal conviction by filing a motion for
a new trial. The rule provides that “[t]he court on motion of a defendant may grant a new
trial to that defendant if required in the interest of justice.” A motion for new trial under
Rule 33 may “be made only after final judgment” if it is based upon newly discovered
evidence. If, however, the “appeal is pending the court may grant the motion only on
remand on the case.” Under Rule 33, a motion for new trial based upon any other ground
“shall be made within ten days after verdict or finding of guilt or within such further time
as the court may fix during the ten-day period.”

2. Sentence and Judgment.

Before entering a judgment in a criminal case, the trial court must impose a sentence
upon the defendant. Although Rule 32(a) of the West Virginia Rules of Criminal Procedure
states that “sentence shall be imposed without unreasonable delay,” there is no specific time limitation provided in the rule. Pursuant to Rules 32(b)(1)(A), (B), and (C), a
presentence report must be prepared, unless it is waived by the defendant, or unless there
is a determination by the court that it is unnecessary in light of sufficient information in the
existing record. Under Rule 32(b)(6)(A), the defendant and his counsel must be furnished
copies of the presentence report prior to the sentencing hearing. Under Rule 32(c)(3)(B),
counsel must be given an opportunity to speak on behalf of the defendant. Further, under
Rule 32(c)(3)(C), the defendant must be given an opportunity to make a statement in his
or her own behalf and to present any information in mitigation of punishment. Of course,
all of these events may operate to delay the imposition of sentencing. When sentence is
finally imposed, however, Rule 32( d)(1) provides that “[a] judgment of conviction,” setting
forth the plea, verdict or findings, and the adjudication and sentence, must be signed by the
judge and entered by the clerk.

3 Notice of Intent to Appeal.

After post-trial motions have been denied and a sentence has been imposed, the
appeal process begins. Unlike appellate practice in civil cases, a “notice of appeal” is
required in criminal cases. Rule 37(b )(1) of the West Virginia Rules of Criminal Procedure
requires that a notice of intent to appeal must be filed within 30 days after the entry of the
judgment, decree or other order appealed from. 30
The notice of intent to appeal must contain information concerning: (1) the party
or parties taking the petition; (2) the judgment, decree or order or part thereof appealed
from; (3) the name of the court from which the petition is taken; (4) the pleadings, orders
and exhibits designated to enable the appellate court to decide the matters raised; and, (5)
the grounds for appeal.

4 Designation of Record.

Designating the record on appeal in criminal cases is almost identical to the process
in civil cases. Under Rule 37(a) of the West Virginia Rules of Criminal Procedure, the
petitioner must, in his notice of appeal filed within 30 days of judgment, “designate by
itemization such pleadings, orders and exhibits to enable the Supreme Court of Appeals to
decide the matters raised. ” This earlier designation allows the circuit court to prepare
the record in advance of the petition for appeal in order to expedite its transmittal of the
Supreme Court of Appeals. Petitioners often designate the entire record as a common
practice; however, counsel should be advised that the petitioner should ordinarily limit
designation to portions of the record that are relevant to the issues presented on appeal.
30See also W.Va. R. Civ. P. 3(b) (“No petition from a criminal case shall be presented unless a
notice of intent to appeal shall have been filed with the clerk of the court in which the judgment or
order was entered within thirty days from the entry of such judgment or order. The notice of intent
to appeal shall concisely state the grounds for appeal.”)
10

5· Preparation of the Transcript.

As set forth more particularly above, the petitioner in a criminal case must include
a designation of the record in the notice of intent to appeal, which is to be filed within 30
days of judgment. Similarly, the notice of intent to appeal must be accompanied by an
Appellate Transcript Request which contains a certification that satisfactory financial
arrangements have been made with the reporter for payment of the cost of transcript. The
procedure for requesting, preparing and filing transcripts is the same as in civil appeals
under Appendix B of the West Virginia Rules of Appellate Procedure. Pursuant to Appendix
B (II)(B)(3), the petitioner must distribute copies of the Appellate Transcript Request form
to the Clerk of the Supreme Court of Appeals, to the respondent, to the circuit clerk, to the
court reporter, and retain possession of the final copy. It is necessary to prepare a separate
Appellate Transcript Request form for each court reporter from whom a transcript is
requested.

6. Time for Presentation of Petition for Appeal.

Rule 37(b)(3) of the West Virginia Rules of Criminal Procedure provides that “[a]
petition for appeal must be filed with the clerk of the circuit court where the judgment ..
. was entered within four months of the entry of the circuit court order.”
When an appeal by the State is authorized by statute, the petition for appeal shall be
filed with the clerk of the circuit court within 30 days after entry of judgment or order
appealed from. Rule 37Cb )(3) further provides that “[t]he appeal period may be extended,
upon request of the appealing party, within four months of the order appealed from for the
purpose of preparing a transcript or for good cause, for a period or periods not to exceed
a total of two months.”

C. ADMINISTRATIVE PROCEDURES ACT.

1. Appellate Review by Circuit Courts.

In the absence of specific statutory language to the contrary, appellate review of
decisions by administrative agencies under the Administrative Procedures Act (AP A) is
controlled by W.Va. Code§ 29A-s-4(b). The statute provides:
Proceedings for review shall be instituted by filing a petition, at
the election of the petitioner, in either the Circuit Court of
Kanawha County, West Virginia or in the circuit court of the
county in which the petitioner or any one of the petitioners
resides or does business, or with judge thereof in vacation,
within thirty days after the date upon which such party received
notice of the final order or decision of the agency.

A copy of the petition must be served by registered or certified mail upon the agency and
all other parties of record. The statute further provides that, after receipt of the copy of the
petition, the agency shall transmit the entire record of the proceeding under review to the
circuit court within 15 days, or within such further time as the court may allow. Although
judicial review of administrative proceedings under the AP A are generally limited to the
record made before the agency, W.Va. Code§ 29A-5-4(f) provides that additional testimony
may be taken “in cases of alleged irregularities in procedure before the agency.” This code
section further provides that “the court may hear oral arguments and require written
briefs.”

There are no requirements regarding the time within which appellate review of
administrative decisions must be completed. There are no time requirements, other than
the 30 day period to file a petition for appeal after a party receives notice of a final agency
decision and the 15 day period within which an agency must transmit a record to a circuit
court. The expense of preparing a record is to be made part of the costs of an appeal, for
which an appellant must provide security for costs satisfactory to the court. In circuit
courts with already crowded civil and criminal dockets, there is a potential for substantial
delay in reviewing administrative decisions. Following the conclusion of proceedings in
circuit court, an appeal lies in the Supreme Court of Appeals.

2. Appellate Review by Supreme Court of Appeals.

Pursuant toW. Va. Code§ 29A-6-1, “any party adversely affected by the final
judgment of a circuit court under this chapter may seek review thereof by appeal to the
supreme court of appeals of this state …. ” The statute further provides that “jurisdiction
is hereby conferred upon such court to hear and entertain such appeals upon application
made therefor in the manner and within the time periods provided by law for civil appeals
generally.” Thus, the policy served by the relative short 30 day appeal period to circuit
court seems to be somewhat defeated by the 4 month appeal period to the Supreme Court
of Appeals. Circuit court review of administrative decisions is generally limited to the
record made before the agency; therefore, there is no need to allow for preparation of a
lengthy transcript.

RULES OF APPELLATE PROCEDURE.

1. Introduction.

After post-trial motions and preparation of the transcript, the procedure for
petitioning for appeal in both civil and criminal cases is virtually identical. As noted more
particularly in previous sections of this chapter, there is no right of appeal in the Supreme
Court of Appeals. The Supreme Court of Appeals’ jurisdiction, both original and appellate,
is entirely discretionary. Therefore, a petition for appeal must be granted prior to full
appellate review.

Again, the chapter is abbreviated, so counsel is advised in all instances to consult the
West Virginia Rules of Appellate Procedure, the state rules of civil and criminal procedure,
and relevant state statutory and constitutional provisions.

2. Time for Filing.

The time for filing a petition for appeal in both civil and criminal actions is governed
by W.Va. Code§ 58-5-4 which is incorporated into Rule 3 of the West Virginia Rules
Appellate Procedure. Rule 3(a) provides that “[n]o petition shall be presented for an appeal
from, or a writ of supersedeas to, any judgment, decree or order, which shall have been
rendered more than four months before such petition is filed in the clerk of the circuit court
where the judgment, decree or order being appealed was entered …. ” Failure to file a
timely petition for appeal presents a jurisdictional infirmity that has been consistently held
to preclude the Supreme Court of Appeals from accepting the appeal. 31
Rule 3(a) further provides that the judge of the circuit court may extend and reextend
the appeal period, not to exceed a total extension of two months. Counsel should
be cautioned, however, that the authority of the trial judge to grant a two-month extension
under Rule 3(a) is conditioned upon a request for the transcript within thirty days of the
judgment, decree, or order from which the appeal is sought.
Additionally, Rule 16(b) of the West Virginia Rules of Appellate Procedure provides
that the Supreme Court of Appeals may, for good cause shown, suspend or enlarge the time
within which a party may file a petition for appeal. 32 Where the Legislature has prescribed
time limitations for appealing specific statutory claims, however, those limitations are
exclusive and cannot be enlarged by the Supreme Court of Appeals.33

3 Petition for Appeal.

The form for the petition for appeal is set forth in Rule 3(c) of the West Virginia
Rules of Appellate Procedure, 34 which provides that the petition must state the following
in the order indicated: (1) the kind of proceeding and nature of the ruling in the lower
tribunal; (2) a statement of the facts of the case; (3) the assignments of error relied upon
31See Roberts v. Consolidation Coal Co., 208 W.Va. 218, 539 S.E.2d 478 (2ooo); Riffe v.
Armstrong, 197 W.Va. 626, 477 S.E.2d 535 (1996); Coonrod v. Clark, 189 W.Va. 669, 434 S.E.2d
29 (1993).
32See First Nat. Bank of Bluefield v. Clark, 181 W.Va. 494, 383 S.E.2d 298 (1989), overruled on
other grounds, Coonrod v. Clark, 189 W.Va. 669, 434 S.E.2d 29 (1993).
33See West Virginia Dept. Of Energy v. Habet Min. and Canst. Co., 178 W.Va. 262,358 S.E.2d
823 (1987).
34W. Va. Code§ 58-5-3 (“A party desiring to appeal … may file a petition in accordance with
Rules of Appellate Procedure promulgated by the Supreme Court of Appeals.”).

on appeal and the manner in which they were decided in the lower tribunal; and (4) points
and authorities relied upon, a discussion of law, and the relief prayed for. The petition
cannot exceed so pages, including any addendum, but excluding the docketing statement
(Appendix A), and Rule 28 of the West Virginia Rules of Appellate Procedure governs
requirements such as paper size, format, spacing, cover page, and caption.
The Supreme Court of Appeals has determined that failure to assign nonjurisdictional
error constitutes waiver.35 An assignment of error contained in the petition,
but not argued in a subsequent brief, also constitutes waiver.36

4 Filing of Petition. 37

a. Filing With Transcript. 38 Petitions for appeal in civil and criminal
cases are not filed directly with the Supreme Court of Appeals. Rule 4 of the West Virginia
Rules of Appellate Procedure requires that an original and 9 copies of the petition for
appeal, a memorandum of parties and counsel, and designation of items in the trial court
record, be filed with the clerk of the circuit court in which judgment was entered. Rule 4(a)
now requires that “a docketing statement (Appendix A) shall be attached to the face of the
original petition and each of the copies.” Appendix B provides guidelines for the
preparation of appellate transcripts in West Virginia courts.
Although there is no filing fee required, under Rule 4( d) of the West Virginia Rules
of Appellate Procedure, the clerk of the circuit court may require the payment of costs
associated with (1) preparing and indexing the record; (2) statutory fees for the filing of the
petition and certifying orders; (3) postage costs for transmission and return of the record;
and, (4) transcription costs. But fees for transcription of testimony are almost always
handled directly through the court reporter. Once the record has been completed and costs
have been paid, the circuit clerk transmits the original and eight copies of the petition for
appeal in the trial court record to the Supreme Court of Appeals.

b. Filing Without Transcript.

Although the West Virginia Rules of
Appellate Procedure clearly favor preparation of the trial transcript, Rule 4A provides that
“[i]n order to provide an inexpensive and expeditious method of appeal, a petitioner may
file his petition without the transcript of testimony taken in the lower court.” The
35Lilly v. Taylor, 151 W.Va. 730, 155 S.E.2d 579 (1967).
36Higginbotham v. City ofCharleston, 157W. Va. 724,204 S.E.2d 1 (1974) overruled on other
grounds, O’Neil v. City of Parkersburg, 160 W.Va. 694, 237 S.E.2d 504 (1977).
37W. Va. Code§ 58-5-6 (“Petitions for appeal shall be filed and processed in accordance with
rules of appellate procedure promulgated by the Supreme Court of Appeals.”).
38W. Va. Code§ 58-5-7 (“The contents of the transcript of record shall be governed in accordance
with rules of appellate procedure promulgated by the Supreme Court of Appeals.”).

procedure under Rule 4A, however, is different in some respects. The appeal period under
Rule 4A is only 6o days from judgment. Moreover, the petition must include a certification
by the petitioner’s attorney that the facts alleged are “faithfully represented and that they
are accurately presented to the best of his ability.” Intentional misrepresentation is grounds
for disciplinary action. As with any other petition for appeal, a petition under Rule 4A
must be served upon opposing parties to afford them an opportunity to file a written
response, but they are not permitted to appear at any oral presentation.

5· Service of Petition.

Rule 3( e) of the West Virginia Rules of Appellate Procedure provides: “The petition
for appeal shall be served in accordance with Rule 15.” Accordingly, all petitions for appeal,
including those from administrative bodies, must be served by hand delivery or mail upon
the opposing counsel or party, depending on whether the party is represented by an
attorney, and must contain a certificate of service. If no appearance has been made by a
party, either in the appeal or in the underlying action from which the appeal is taken, no
service is necessary.

6. Response to Petition.

If the appeal is from a judgment, order, or decree of a circuit court, a respondent has
the opportunity to file, pursuant to Rule 3(f) of the West Virginia Rules of Appellate
Procedure, an original and 9 copies of a response with the Clerk of the Supreme Court of
Appeals. The response must be filed within 30 days of the filing of the petition, a copy
served on each party to the appeal, and cannot exceed so pages, including any addendum.

7. Reply to Response to Petition.

Rule 3(g) of the West Virginia Rules of Appellate Procedure expressly provides: “No
reply to a response to a petition for appeal shall be filed.” (emphasis added).

8. Oral Presentation of Petition.
Under Rule s(a) of the West Virginia Rules of Appellate Procedure “[i]f desired,
counsel for the petitioner or a petitioner unrepresented by counsel shall request oral
presentation of the petition in the docketing statement filed with the petition.” Unless
otherwise provided by law, oral presentations are allowed only at the Supreme Court of
Appeals’ discretion. Once a request for oral presentation is granted, the Clerk’s office
schedules a date for oral presentation. Pursuant to Rule 5( d),”[ u]pon receipt of notice from
the Clerk’s office as to the date set for oral presentation, counsel for the petitioner or a
petitioner unrepresented by counsel shall provide written notice of such date to all counsel
of record and to all parties unrepresented by counsel.”
On December 31, 1990, the Supreme Court of Appeals amended Rule s(a) of the
West Virginia Rules of Appellate Procedure to provide that “oral presentation will not be
heard, except upon motion for good cause shown, prior to expiration of the period allowed
for filing a response as provided in Rule 3(f).” Under Rule 3(f), the respondent has 30 days
after a petition is filed with the circuit clerk to file a response with the Clerk of the Supreme
Court of Appeals. Accordingly, oral presentation may not be scheduled on a date earlier
than 30 days after the filing of the petition. For example, if a petition for appeal is filed in
the circuit clerk’s office on January 1, oral presentation may be scheduled on a motion
docket on or after January 31st.

Generally, motion dockets are scheduled for six to seven days in January and
September, three to four days in May, and one day in each of the remaining nine months,
usually the first Tuesday, except in August when the Supreme Court of Appeals is in recess.
Although a written response to a petition for appeal may be filed under Rule 3(f), opposing
counsel is not permitted oral presentation in response to the petition for appeal.
Rule s(b) provides that “[o]ral presentation shall be limited to ten minutes, unless
additional time is granted by the court.” Generally, oral presentation of a petition on the
motion docket averages about six minutes, almost never exceeding the allotted ten minutes.
Petitions are circulated to the justices for review approximately one week prior to argument
on the motion docket. Ordinarily, the record and transcript are not reviewed, rather
reliance is made upon the factual representations of counsel. Review by the justices of the
facts and issues presented in the petition reduces the need for detailed oral presentation.
The primary purpose of oral presentation on the motion docket is to afford the Supreme
Court of Appeals an opportunity to inquire regarding any matters which may not be
discerned from a reading of the petition. Usually, if there are no questions, the statement
by the Chief Justice or one of the other Justices that “[ w ]e understand your case,” signals
the end of the oral presentation. The Supreme Court of Appeals will usually render
decisions on petitions presented orally on either the same or the next day. At times,
independent analysis by one of the Court’s staff attorneys called “writ clerks,” may be
desired. In such a case, the petition and record are forwarded for review and presented at
a conference at a later date.
Under Rule s(c), counsel may elect to waive oral presentation. This may be done in
writing, by telephone, or by failing to request oral presentation within 30 days. Once oral
presentation is waived, the petition and record are forwarded to one of the writ clerks,
whose function is to review petitions and to make oral presentations to the entire Supreme
Court of Appeals in chambers.
In addition to cases which are referred to the writ clerks from the motion docket or
due to waiver of oral presentation, all pro se cases, including habeas corpus petitions filed
by prisoners, and all workers’ compensation appeals, for which oral presentation is
precluded except upon a showing of good cause, are referred directly to writ clerks. The
writ clerks conduct a thorough review of the petition, record, and transcript prior to
presentation of periodic conferences. These “writ conferences” at which presentations are
made, generally occur on a bi-weekly basis.

9· Rejection or Allowance of Appeal.

a. Reapplication Upon Rejection. If the Supreme Court of Appeals
initially rejects a petition for appeal, all may not necessarily be lost. Rule 7 of the West
Virginia Rules of Appellate Procedure allows reapplication if two criteria are met: (1) that
the respective petitions be filed during the period prescribed by law for presentation of
petitions (the second application can only be made if the appeal period has not expired);
and (2) a petitioner desiring to renew his petition should notify the clerk of his intention in
writing within 30 days after the entry of the order denying his original application.
Although the rule requires request for reapplication, oral requests within the period are
allowed. Rule 7Cb) allows the petitioner to file “an amended petition or supplemental
argument.” Generally, reapplications are made on the original petition.
b. Allowance of Appeal. If a petition for appeal is granted, a copy of the
Supreme Court of Appeals’ order is mailed to petitioner’s counsel, the clerk of the circuit
court, and counsel of record to all parties to the underlying proceeding. Under Rule 7( c)(2)
of the West Virginia Rules of Appellate Procedure, the record is returned to the circuit clerk
for designation of the record on appeal.

10. Stay of Proceedings Pending Appeal.

Rule 6 of the West Virginia Rules of Appellate Procedure allows the Supreme Court
of Appeals to enter stays of execution of judgment pending appeal.39 Rule 6(a) presumes
that the applicant will initially apply for this stay to the “circuit court in which the judgment
or order desired to be appealed was entered.”40 Under Rule 6(b), a circuit court is required
to grant a stay in a criminal case. 41 Otherwise, a motion for stay of judgment pending
appeal in a civil case is addressed to the sound discretion of the circuit court. A circuit court
may grant a stay of execution for less than the statutory four-month appeal period. Such
authority is used by circuit judges occasionally to shorten the appeal period in order to
expedite final case disposition. Unless modified by the circuit court or the Supreme Court
39W. Va. Code § s8-s-s (“A petition for stay of proceedings pending appeal … shall be filed and
processed in accordance with rules of appellate procedure promulgated by the Supreme Court of
Appeals.”).
40See also W.Va. R. Civ. P. 62(a) (“Except as stated herein, no writ of execution shall issue upon
a judgment nor shall other proceedings be taken for its enforcement until the expiration of 10 days
after its entry, -unless otherwise ordered by the court, nor after that time pending the disposition
of a motion for judgment as a matter oflaw made pursuant to Rule so or of a motion for a new trial
made pursuant to Rule 59(a).”); W.Va. R. Civ. P. 62(i) (“On motion and on such conditions for the
security of the adverse party as are proper, the court may stay the issuance of execution upon a
judgment and any other proceedings for its enforcement for such reasonable time, to be specified
by the court in the stay order, as will enable the moving party to present to an appellate court a
petition for appeal from the judgment.”).
41See also W.Va. Code§ 62-7-1.

of Appeals, however, the stay is effective “for the period prescribed by law for presentation
of the petition for appeal” and “for any additional period after an appeal has been allowed
pending final disposition of the appeal.”
Under Rule 6(c), “[i]f the circuit court should refuse to grant a stay, or if the relief
afforded is not acceptable, the applicant may, upon written notice to the opposite party,
apply to the Supreme Court for a stay.” The applicant is required “to show the reasons
assigned by the circuit court for denying a stay or other relief, and further show the reason
for the relief requested and the grounds for the underlying appeal.” The application must
be supported by affidavits or other sworn statements if the facts are disputed as well as filed
with such parts of the record that are relevant.

11. Bonds or Other Security Preserving Rights Pending Appeal.

In order to secure a judgment rendered in circuit court, Rule 6( d) provides that the
award of a stay pending appeal “may be conditioned upon the filing of a bond or other
appropriate security in the circuit court, in such amount and upon such conditions as the
court granting the stay feels is proper for the protection of the adverse party”42 and that
“[t]he provisions of W.Va. Code§ 58-5-14, are applicable.” Until2007, W.Va. Code§ 58-
5-14(a) provided, “When required by the court, an appeal shall not take effect until bond
is given …. “43 This statute now provides, “When required by the court, an appeal may not
take effect until bond is given by the appellants or petitioners …. “44
One of the goals of the amendment toW. Va. Code§ 58-5-14 was to make clear that
a supersedeas or appeal bond is discretionary, not mandatory.45 For example, where a
judgment debtor has sufficient assets to satisfy a judgment, a circuit court may exercise its
discretion to grant a stay of such judgment without requiring any security.46 A circuit court
42(emphasis added).
43(emphasis added).
44(emphasis added).
45See also Fed. R. App. P. 7 (“In a civil case, the district court may require an appellant to file a
bond or provide other security in any form and amount necessary to ensure payment of costs on
appeal. Rule 8(b) applies to a surety on a bond given under this rule.”); Lundy v. Union Carbide
Corp., 598 F. Supp. 451, 452 (D. Or. 1984)(“The requirement of an appeal bond under Appellate
Rule 7 is left to the discretion of the district court.”).
46See 5 Am. Jur. 2dAppellate Review§ 429 (2007)(“A district court does not abuse its discretion
in granting a party’s motion for stay of execution of judgment, pending disposition of post-trial
motions and appeal, without requiring a supersedeas bond, where the party’s annual revenue
indicates that it has the ability to pay the judgment, such that the cost of the bond would be a waste
of money.”)(footnote omitted); Northern Indiana Public Service v. Carbon County Coal, 799 F.2d
265 (7th Cir. 1986)(waiving the requirement of bond pending appeal where the appellant was a may also permit “other appropriate security” in the form of a letter of credit which is an
acceptable form of security for a stay of judgment pending appeal. 47 A letter of credit is the
functional equivalent of a supercedeas bond48 but usually costs much less to maintain than
paying a supersedeas bond premium. And counsel should be cautioned that this is an issue
that not only affects a judgment debtor, but also a judgment creditor who subsequently
loses on appeal. Like most jurisdictions, the costs of appeal are taxed against the losing
party and such costs include, under Rule 23(e), “the premiums paid for the cost of
supersedeas bonds or other bonds to preserve rights pending appeal[.]”
If a circuit court requires an appeal bond, the bond is ordinarily the amount of the
judgment and any projected post-judgment interest. Although a circuit court has the
authority to stay the execution of judgment pending appeal requiring no or only limited
security,49 a circuit court has no jurisdiction to prescribe the terms of any supersedeas or
appeal bond except as provided by W.Va. Code § 58-5-14.50 W.Va. Code § s8-5-14(b)
provides, “Except for bonds required under section four, article eleven-a, chapter four of this
solvent public utility, with net worth well in excess of the judgment).
47See State ex rel. A.T. Massey Coal Co., Inc. v. Hoke, No. 060936 (W. Va. April 10,
2006)(staying trial court order increasing irrevocable letter of credit securing judgment pending
appeal from $55 million to $72 million); Federal Trade Commission v. Kuykendall, 466 F.3d 1149
(10th Cir. 2006)(letter of credit used to secure judgment pending appeal); Swope v. Siegel-Robert,
Inc., 270 F.3d 742 (8th Cir. 20o1)(letter of credit used to secure judgment pending appeal);
Liqurotis v. Whyte, 951 F.2d 818 (7th Cir. 1992)(letter of credit used to secure judgment pending
appeal). See also Kocher v. Getz, 844 N.E.2d 1026, 1032 (Ind. Ct. App. 2006)(“the trial court
ordered Kocher to either: 1. Submit to the Court for its examination a properly authorized and
executed surety bond in the amount of $266,517.28 to guarantee payment of the Plaintiffs
judgment herein, or 2. File an irrevocable letter of credit from a financial institution in the amount
of $266,517.28 to guarantee payment ofPlaintiffs judgment herein, or 3. Post money in the amount
of $266,517.28 to guarantee payment of Plaintiffs judgment herein.”)
48A letter of credit is guaranteed by a federally-insured and regulated financial institution
whereas a supercedeas or appeal bond is guaranteed by a state-regulated surety company. See also
Ligurotis v. Whyte, 951 F.2d 818, 821 Cih Cir. 1992)(“Along with the Second Circuit … we have
noted that a letter of credit may serve as the equivalent of a supersedeas bond. See Landau &
Cleary, Ltd. v. Hribar Trucking, Inc., 867 F.2d 996, 998-99 C?th Cir.1989).”); Beaupre v. Kingen,
899 F.2d 1224 at *2 (9th Cir. 1990)(“Idaho courts have found, however, that an irrevocable letter
of credit is ‘substantially equivalent to … a supersedeas bond’ for purposes of Rule 13. Whittle v.
Seehusen, 113 Idaho 852, 748 P.2d 1382, 1388 (App.1987).”).
49See Kessel v. Leavitt, 204 W.Va. 95, 511 S.E.2d 720 (1998)(requiring no security for West
Virginia judgment debtors and reducing security required for a California judgment debtor from
$7 million to $1.1 million); State ex rel. A.T. Massey Coal Co., Inc. v. Hoke, No. 060936 (W.Va.
April10, 2006)(staying trial court order increasing irrevocable letter of credit securing judgment
pending appeal from $55 million to $72 million).
50Stateexrel. Shenandoah ValleyNationalBankv. Hiett, 127W. Va. 381,32 S.E.2d 869 (1945).

code, an appeal bond required by a court in accordance with this section may not exceed the
amount of the total judgment, which includes the actual judgment, plus costs, interest and
fees[.]” An exception is made “for all verdicts returned or judgments rendered on or after
the first day of July, two thousand seven, in which the judgment exceeds fifty million
dollars[.]” Under these circumstances, “the court shall require an appeal bond of no more
than fifty million dollars.” The primary purpose of these new amendments toW. Va. Code
§ 58-5-14 is “limiting bond amounts.”51
If a stay is conditioned upon the filing of a bond, Rule 6( d) provides that “such bond
shall be filed within thirty days of the granting of the supersedeas with the clerk of the
circuit court, who shall immediately report the filing of the same to the Clerk of the
Supreme Court. Failure to execute such bond may be grounds for the dismissal of the
appeal.”52 Pursuant toW. Va. Code§ 59-2-1, however, indigents may prosecute an appeal
on their own recognizance, rather than by posting a money bond. 53

12. Designation of Appellate Record.

Although a designation of the record is performed at the time the petition for appeal
is initially filed, the possibility exists that the appellee may desire additional portions of the
record be considered on appeal. Upon receipt of the record, the circuit clerk sends notice
to counsel of the following designation schedule: (1) 20 days for designation by the
appellant; (2) 14 days for designation by the appellee; (3) 10 days for additional designation
by the appellant. W.Va. R. App. P. 8(a). Counsel should be aware that Rule 8(b) allows a
joint designation and Rule 8(c) permits an agreed order, both within a 30 day time frame,
but these alternatives are rarely used in practice. Designation of the appellate record
generally requires anywhere from 45 to 6o days. Rule 8( d) provides that: “[t]he designation
… should include only matter relevant to the issues presented on appeal,” and provides
withholding or dividing costs as a possible penalty for designation of”unnecessary matter.”
Notwithstanding this provision, questionable designations are quite prevalent in the court,
and penalties are almost never imposed.

13. Reproduction of Filing of Appellate Record.

a. Notice ofMethod ofReproduction.

Pursuant to Rule 9(a) of the West
Virginia Rules of Appellate Procedure, circuit clerks are given 30 days within which to
51 See Enrolled Comm. Subst., Senate Bill No. 194 (2007 Regular Session).
52 See also Stevens v. Saunders, 159 W.Va. 179, 183, 220 S.E.2d 887, 890 (1975) (“[T]his
Court has said on numerous occasions that statutes which require the giving of bond as a
prerequisite to the prosecution of an appeal are strictly construed and their requirements are
mandatory and jurisdictional. An untimely filing of such a bond dictates the dismissal of a case.”)
(citations omitted).
53 Rosier v. Rosier, 162 W.Va. 902, 253 S.E.2d 553 (1979).

“assemble, paginate, and index the record as designated or agreed.” This period can be
extended or re-extended for an additional 6o days by the circuit court to permit the
preparation of any additional transcripts which have been designated. Once the appellant
has been notified by the circuit clerk that the record is complete, the appellant is afforded
a 10 day period within which to elect to reproduce the record or to have the record
reproduced by the Clerk of the Supreme Court of Appeals. Although election to reproduce
by the appellant is almost never requested, if such election is made, Rule 9(b )(1) requires
the appellant to file 9 copies of the record with the Clerk of the Supreme Court of Appeals
and to serve a copy on each party within 6o days of the clerk’s notification of record
completion. Failure to comply with the 6o day period may result in the dismissal of the
appeal.

b. Deposit for Cost of Appellate Record.

As set forth above, the
appellant usually elects to have the record reproduced by the Clerk of the Supreme Court
of Appeals. Once this election is made, the record is transmitted to the Clerk immediately.
W.Va. R. App. P. 9Cb )(2). Upon receipt, a bill for the estimated cost of reproduction is then
forwarded to the appellant, and the estimated cost must be deposited within 30 days of the
estimate. W.Va. R. App. P. 9(b)(2). Counsel should be cautioned that delays in securing
deposit for the cost of reproducing the record can result in dismissal when a non-indigent
appellant fails to make a timely deposit.

c. Preparation for Reproduction.

Once the deposit is received, the
deputy clerk begins to review the designated record for relevancy to the issues presented
on appeal. Ordinarily, a sizable portion of the designated record is deleted as irrelevant to
the issues presented on appeal. Retention of deleted portions of the designated record in
the clerk’s office ensures its availability, if necessary.
d. Numbers of Copies of Appellate Record.

Rule 9(b)(2) of the West
Virginia Rules of Appellate Procedure provides that at least 9 copies of the record be
reproduced plus a copy for each of the parties.

e. Motion for Leave to Move to Reverse.

Although the record is
reproduced in most civil and criminal appeals, such reproduction may be dispensed with
upon the court granting a “motion for leave to move to reverse” or a “motion for leave to
move to affirm” under Rule 9(f) of the West Virginia Rules of Appellate Procedure. The
appeal is then heard upon the original record, typewritten briefs, and oral argument of
counsel.
An obvious advantage to the granting of a motion for leave to move to reverse is the
significant reduction in time for processing the appeal. There are three types of cases in
which the proceeding upon the original record is most favored: (1) where the appellant is
indigent; (2) where the record is very brief, such as in an appeal from the award of summary
judgment; or (3) where the record is extraordinarily large, such as in a complicated
products liability case.

14. Briefing.

The actual briefing process begins upon receipt of the appellate record. The
appellant is granted 30 days, under Rule 1o(a) of the West Virginia Rules of Appellate
Procedure, following receipt of the record, to file an original and 9 copies of a brief with the
Clerk of the Supreme Court of Appeals and to serve a copy upon each party to the appeal.
The brief should be in the same form as the petition for appeal and cannot exceed so pages,
including any addendum. Although not provided specifically by the rules, the appellant is
allowed, upon written notice to the Clerk and to all parties, to designate the petition for
appeal as his or her brief. If the petition has not been previously served upon opposing
counsel, it must be served along with this notice.
Under Rule 1o(b), an appellee is given 30 days after receipt of the appellant’s brief
to file an original and 9 copies of a brief with the Clerk of the Supreme Court of Appeals and
to serve a copy upon each of the parties. The brief should contain any alleged omissions or
inaccuracies of the appellant’s statement of the case, a concise response to alleged errors,
authorities relied upon, and the appellee’s argument. Also, under Rule 1o(f), the appellee
is permitted to cross-assign any error in this brief, even if no petition for appeal was filed
within the appeal period. The brief cannot exceed 50 pages, including any addendum.
Finally, under Rule 1o(c), the appellant has 15 days after receipt of the appellee’s
brief to file an original and 9 copies of a reply brief with the Clerk of the Supreme Court of
Appeals and to serve a copy upon each of the parties. The Supreme Court of Appeals will
not review any assignments of error made in a reply brief that were not made in the petition
for appeal.54 Appellees occasionally file a response brief to the appellant’s reply brief,
especially if new issues or authorities are raised for the first time therein. Again, the brief
cannot exceed 50 pages, including any addendum.

15. Motions Practice.

Rule 17(a) of the West Virginia Rules of Appellate Procedure provides: “Unless
another form is elsewhere prescribed by these rules, an application for an order or other
relief shall be made by filing a motion for such order or other relief with service on all other
parties.” Two features of motions practice in the Supreme Court of Appeals serve to
minimize delay: (1) Rule 17(b) provides, “motions for procedural orders may be acted upon
at anytime, without awaiting a response thereto;”55 and (2) Rule 17(d) provides, “[n]o oral
argument shall be held on any motion, unless requested by the Court.” Oral arguments are
almost never requested by the Supreme Court of Appeals.
54Bloyd v. Scroggins, 123 W.Va. 241, 15 S.E.2d 6oo (1941).
55 An exception this rule is W.Va. R. App. P. 18(c) which requires a 20 day period in order to
respond to a motion to dismiss the appeal with sanctions.

Ordinarily, rulings on motions are rendered within approximately one week of their
submission to the Supreme Court of Appeals. Many requests, such as for minor extensions
of time within which to file a brief, are routinely granted by the Court without formal
motion, especially if there is an agreement among the parties and no delay will result.
Formal motions, however, are considered by the full Court at a weekly miscellaneous
motions conference. Prior to the conference, the Clerk circulates a memorandum briefly
summarizing and attaching each motion to be considered, thereby alleviating the necessity
of reading each motion to be considered and allowing the individual Justices to review only
matters which might cause dispute.

16. Scheduling of Oral Argument.

a. Scheduling Procedure.

Rule u(a) of the West Virginia Rules of
Appellate Procedure provides: “Seventy-five days before the first day of each … term …
the Clerk of the Supreme Court shall prepare a list of cases in which the record has been
filed . . . . Such docket shall set a date certain for oral argument of each case.” Simply put,
all cases in which the briefing schedule has begun more than 75 days prior to the next term
will be set for argument in that term. The combination of scheduling argument in this
manner and adherence to a strict continuance policy minimizes delay of filing of briefs.
About 45 days before the first day of each term, a survey of all cases set for argument is
conducted to determine the existence of any delay in filing the appellant’s brief, which is
critical to the briefing process. If any problems are discovered, attorneys are contacted by
phone with a warning regarding the possibility of a dismissal as a sanction.

b. Term of Court.

There are two regular terms of the Supreme Court of
Appeals of West Virginia: the January regular term, which begins on the second Tuesday
of January; and the September regular term, which begins on the first Wednesday in
September. In the past, extraordinary term of court was held in April or May. However,
for the past few years, the January regular term which formally concluded in early April has
been continued through late July. Traditionally, the Supreme Court of Appeals has
adjourned from late July through the first Wednesday in September. Although technically
in vacation during this period, the Court continues to hear extraordinary matters and
perform various administrative functions. Argument dockets are currently held on Tuesday
and Wednesday for the first three to four weeks of both the January and September regular
terms and on one to two consecutive Tuesdays and Wednesdays in May.

c. Continuance of Argument.

The Supreme Court of Appeals has rigidly
enforced the strict continuance policy, particularly during the last several years. Cases that
are rescheduled are ordinarily set on an earlier date or postponed for no more than two to
three weeks. Rule 12(a) of the West Virginia Rules of Appellate Procedure provides that,
“[a] request for postponement of the argument … shall be filed at least ten days before the
date set, whenever possible,” however, an even stricter policy has been implemented by the
clerk’s office. When counsel is notified that a case has been scheduled for argument, they
are also notified that continuances are strongly disfavored by the court; that any request for
continuance must be sought by written motion, preferably joint, at least one week prior to
commencement of the term; and that submission on briefs without oral argument should
be considered as an alternative to continuance. Consequently, very few motions for
continuance are filed and those that are filed are ordinarily accompanied by an agreement
of counsel for an alternative date during that same term.

17. Assignment of Cases and Preparation for Argument.
Once an argument docket has been set by the Clerk, the assignment Justice is
forwarded a bench memoranda for all the cases for the term. The assignment Justice uses
this memoranda to tentatively decide whether a case should receive disposition by justice
opinion, by per curiam opinion, or by per curiam order. Once this determination is made,
cases are assigned to the Justices and per curiam clerks on a rotating basis. This process
is ordinarily completed in approximately two to four weeks prior to the commencement of
the term. Thus, preparation for oral argument, concentrating on cases to which a Justice
has been assigned, begins early. Because all the Justices participate in every decision to
grant appellant review, this process is part refreshment and part refinement.

18. Oral Argument.

Although under Rule 12(a) of the West Virginia Rules of Appellate Procedure,”[ o ]nly
two counsel shall be heard on each side of a case,” the Court will occasionally permit more
than two counsel per side upon prior written request. Generally, only one attorney per side
appears. Under Rule 12(b), the appellant is allowed 20 minutes to open and 10 minutes to
close argument, and the appellee is permitted 20 minutes. However, in practice, the actual
time allowed is far less. If counsel for the appellant presented the petition for appeal orally,
opening argument is sometimes shortened, under the rational that recitation of the issues
presented is redundant. Attorneys are occasionally directed to present only their strongest
one or two points. Counsel should be cautioned that the Court rewards succinctness with
nods of approval and verbosity is punished with scowls of disdain. Often, the statement by
the Chief Justice, “We understand your case,” signals the end of the argument for the
attorney in question.
As set forth above, oral argument is discretionary with counsel, except in workers’
compensation appeals where oral argument is permitted only upon written notice and with
good cause shown. Although most cases are argued, many cases are submitted without oral
argument. Cases in which issues are narrow, in which the financial aspects are minimal or
in which the litigants are seeking to reduce attorneys fees are most likely the candidates for
submission without oral argument. Criminal cases are the only case category most likely
to be submitted without oral argument because attorneys appointed to represent indigent
defendants are generally inadequately compensated for this representation and seek to
minimize the financial burden on their practice.

19. Decision Conference.

On the Thursday following Tuesday and Wednesday arguments, or on the
Wednesday following Tuesday arguments, conferences at which decisions are made on the
cases appearing at the argument dockets are held. The cases are generally addressed in the
order of presentation, with the Justice to whom the case was assigned leading the
discussion. These conferences are attended only by the Justices with one of the Justices
noting the tentative decisions of the Court. These tentative decisions on individual cases
reached at these conferences vary from the specific to the general. On occasion, the Court
may desire review and presentation of a troublesome court case by one of the per curiam
clerks at a special conference conducted later in the term. Decision conference notes are
prepared following completion of the conference and are circulated to each of the Justices
for supervision of preparation of the opinion or order. These decisions are tentative in
nature, and may be modified upon further research of the assigned Justice or one of his or
her clerks. If the Justice to which a case has been assigned is in the minority, the case will
be exchanged for another of the Justices in the majority.

20. Opinion Conference.

After opinion drafts have been completed by the assigned Justice, they are circulated
to the other Justices for review and preparation for opinion conference. Sometimes, drafts
of opinions or orders are exchanged informally between individual Justices prior to general
circulation in order to resolve any differences. Drafts are routinely approved at opinion
conference without further revision; however, minor changes may be suggested in a few
cases which may require recirculation for discussion at a subsequent opinion conference.

21. Entry of Judgment and Mandate.

Pursuant to Rule 20 ofWest Virginia Rules of Appellate Procedure, “The Clerk of the
Supreme Court shall prepare, sign and enter the judgment following receipt of the opinion
of the Court …. ” Except in original jurisdiction proceedings, however, the judgment of
the court is not final until the entry of the mandate. 56 In practice, the mandate is entered
upon the expiration of the 30 day rehearing period. Costs are taxed by the Clerk against
the losing party and the record returned to the lower tribunal.
Practically, there are three benefits in the 30 day period between entry of judgment
and entry of mandate: (1) it maintains the status quo during the pendency of the rehearing
period, in order to preserve the court’s ability to correct any mistakes oflaw or fact; (2) it
allows the lower tribunal and the parties to carefully review the Court’s decision in
preparation for its implementation; and (3) it permits performance of certain clerical
functions, such as taxation of costs, prior to return of the record to the lower court.
56Shields v. Romine, 123 W.Va. 212, 14 S.E.2d 777 (1941).

22. Costs.

Like most jurisdictions, the costs of appeal are taxed against the losing party. Under
Rule 23( c) and (e) of the West Virginia Rules of Appellate Procedure, costs of appeal taxed
against the losing party include “[c]osts for reproduction of the record” and “[c]osts
incurred in the preparation and transmission of the record, the cost of the reporter’s
transcript” as well as “the premiums paid for the cost of supersedeas bonds or other bonds
to preserve rights pending appeal[.]” Under Rule 23 (d), “[t]he Clerk shall prepare and
certify an itemized statement of costs taxed in the Supreme Court for insertion in the
mandate. If the mandate has been issued before final determination of costs, the statement,
or any amendment thereof, may be added to such order at any time upon request of the
Clerk.”

23. Petition for Rehearing.

Rule 24(a) of the West Virginia Rules of Appellate Procedure, provides that, “[a]
petition for rehearing, together with [8] copies thereof, may be filed within [30] days after
release of the entry of judgment unless the time is shortened or enlarged by order.” No
answer to a petition for rehearing is required, but the parties will be notified if the petition
is granted and, at that time, may be asked to file a counter-petition and memorandum of
authorities. Unless the Court otherwise orders, oral argument is not permitted on petitions
for rehearing, and decisions are made by the Court in conference upon the petition, any
response, and a memorandum prepared by the Clerk. The granting of a petition for
rehearing is extremely rare. The procedure is not intended to allow reargument of points
raised in the briefs previously submitted, but only to allow recitation of “points oflaw or
fact which in the opinion of the petitioner the Court has overlooked or misapprehended .
. . . ” Because of the limited scope of petitions for rehearing, Rule 24(b) imposes a 15 page
limitation.

ORIGINAL JURISDICTION PROCEDURE.

1. Introduction.
There are several distinctive features of the procedure for invoking original
jurisdiction of the Supreme Court of Appeals, but there are similarities with the appellate
process.
The primary differences in the original jurisdiction procedure are: (1) the petition
is initially filed with the Clerk of the Supreme Court of Appeals, rather than with the circuit
clerk; (2) if the petition is granted, the respondent is served with a rule to show cause,
rather than with a summons; (3) the respondent is allowed 20 days following service of the
rule to show cause to file a written response, rather than 30 days following receipt of the
petitioner’s brief; (4) the parties may be permitted to engage in further discovery, rather
than limited to a record in the lower tribunal; (5) the record consists of the pleadings,
attached exhibits, affidavits, depositions, and findings of fact by any special master or
26
commissioner appointed, rather than one developed before a lower tribunal; ( 6) this record
is not reproduced as an appeal proceeding; and (7) a date for oral argument is established
contemporaneously with the granting of a petition for original jurisdiction relief, ordinarily
set on the available argument docket calendar, rather than awaiting completion of the
record or submission of all pleadings. W.Va. R. App. P. 14.
The primary similarities are: (1) oral presentation of the petition, if requested, is
performed ex parte; (2) the decision to issue a rule to show cause is wholly discretionary;
and (3) if a rule to show cause is issued, oral argument is conducted in the same manner as
on appellate review. W.Va. R. App. P. 14. One important provision contained in Rule 14( c)
is that “[i]f the court determines not to grant a rule to show cause, such determination shall
be without prejudice to the right of the petitioner to present a petition to a lower court,
unless the court specifically notes in the order denying a rule to show cause that the denial
is with prejudice.” The Supreme Court’s exercise of its original jurisdiction, “is
discretionary and is governed by the practical circumstances of the case.”’57
The West Virginia Rules of Civil Procedure governing extraordinary remedy
proceedings in circuit court are inapplicable to original jurisdiction proceedings in the
Supreme Court of Appeals.58 Moreover, in Syllabus Point 6 of State ex rel. Allstate
Insurance Co. v. Gaughan,59 the Supreme Court of Appeals created an additional
requirement to seeking the Court’s original jurisdiction:
A party seeking to petition this Court for an extraordinary writ
based upon a non-appealable interlocutory decision of a trial
court, must request the trial court set out in an order findings
of fact and conclusions oflaw that support and form the basis
of its decision. In making the request to the trial court, counsel
must inform the trial court specifically that the request is being
made because counsel intends to seek an extraordinary writ to
challenge the court’s ruling. When such a request is made, trial
courts are obligated to enter an order containing findings of
fact and conclusions of law. Absent a request by the
complaining party, a trial court is under no duty to set out
findings of fact and conclusions of law in non-appealable
interlocutory orders.
57State ex rel. McGraw v. Telecheck 213 W.Va. 438, 443 n.3, 582 S.E.2d 885, 890 n.3 (2003)
(quoting State ex rel. Doe v. Troisi, 194 W.Va. 28, 32, 459 S.E.2d 139, 143 (1995)).
58 See State ex rel. Ritchie v. Tripplet, 160 W.Va. 599, 236 S.E.2d 474, 478 (1977) (recognizing
original jurisdiction proceedings in the Supreme Court of Appeals are governed by Supreme Court
of Appeals Rule of Procedure.)
59203 W.Va. 358, soB S.E.2d 75 (1998).

After satisfying Gaughn, the proper procedure for invoking the original jurisdiction of the
Supreme Court of Appeals is found in Rule 14 of the West Virginia Rules of Appellate
Procedure. For any additional requirements such as verification or for securing a stay of
proceedings until a final decision, counsel is advised in all instances to consult the statutory
provisions governing the extraordinary remedies of mandamus 60 prohibition 6
habeas
corpus 62
and certiorari 63 with any conflicts being resolved in favor of the Rules of Appellate
Procedure.

2. Petition for Writ.

The form for a petition for writ of mandamus, prohibition, habeas corpus, or
certiorari under the original jurisdiction of the Supreme Court of Appeals is set forth in
Rule 14(a) of the West Virginia Rules of Appellate Procedure,64 and must be filed with (1)
an attached addendum or separate appendix of any exhibits or affidavits, (2) a
memorandum of law citing the relevant authorities, and (3) a memorandum listing the
names and addresses of those persons upon whom the rule to show cause is to be served,
if granted. Although counsel should strive to ensure that it is invoking the correct remedy,
“[i]n appropriate situations, th[ e] Court has chosen to treat petitions for extraordinary relief
according to the nature of the relief sought rather than the type of writ pursued.”65
A petition cannot exceed 50 pages in length, including any addendum (but excluding
any appendix) except by permission of the Supreme Court of Appeals. An appendix cannot
exceed 75 pages except by permission of the Supreme Court of Appeals. Thus, if a single
document is filed with the Supreme Court of Appeals including the petition and appendix,
the number of pages cannot exceed 50 in total. If a petition is filed accompanied by a
separate appendix, however, the maximum available is 125 pages. Also, if the original
jurisdiction proceeding involves a matter that is pending in a circuit court where the circuit
court has entered a written order relating to the matters sought to be adjudicated by the
Supreme Court of Appeals, a copy of such order must be filed with the petition.
60See W.Va. Code§ 53-1-1 et seq. (governing writs of prohibition and mandamus).
61See W.Va. Code§ 53-1-1 et seq. (governing writs of prohibition and mandamus).
62See W.Va. Code§ 53-4-1 et seq. (governing writs of habeas corpus); W.Va. Code§ 53-4A-1 et
seq. (governing writs of post-conviction habeas corpus).
63See W.Va. Code§ 53-3-1 et seq. (governing writs of certiorari).
64W. Va. Code§ 58-5-3 (“A party … seeking the original jurisdiction ofthe Supreme Court of
Appeals . . . may file a petition in accordance with Rules of Appellate Procedure promulgated by
the Supreme Court of Appeals.”).
65State ex rel. Termnet Merchant Services, Inc. v. Jordan, 217 W. Va. 696, 619 S.E.2d 209
(2005).

3· Filing and Service of Petition.

Under Rule 14(a) of the West Virginia Rules of Appellate Procedure, an original and
9 copies of the petition, addendum, appendix, and memorandum oflaw must be filed with
the Clerk of the Supreme Court of Appeals. In original jurisdiction cases, a copy of all
documents filed with the Clerk must be served upon each respondent in accordance with
Rule 15 of the West Virginia Rules of Appellate Procedure and, thus, by any method
prescribed by Rule 4 of the West Virginia Rules of Civil Procedure. If any of the
respondents are a state or county official, a copy of all documents filed with the Clerk’s
Office must be served upon either the Attorney General or the appropriate county
prosecuting attorney.

4· Response to Petition.

Before deciding whether to issue a rule to show cause, the Supreme Court of Appeals
may direct a respondent under Rule 14Cb) of the West Virginia Rules of Appellate Procedure
to file a response to the petition directing the Court’s attention to the reasons why the Court
should not issue a rule to show cause. The rule does not detail what the response to the
petition should look like, but, in the past, these responses have ranged from simple letters
to the Court to full blown brief-like answers. Because the rule provides that, if a response
is requested, the Clerk will contact the affected parties by telephone as soon as possible after
the petition is filed, and many such responses will be required to be filed in a short period
of time, the Court’s past practice also has been that issuance of a rule to show cause does
not limit a respondent to what is contained in the response, but may be expanded upon and
added to in the formal response to the rule to show cause under Rule 14(d) of the West
Virginia Rules of Appellate Procedure.

5· Rule to Show Cause.

If the Supreme Court of Appeals agrees to take the case, Rule 14(c) of the West
Virginia Rules of Appellate Procedure provides that the Court will issue a rule to show cause
directed to the respondents as set out in the petitioner’s memorandum of parties. The
Court will also mail a copy of the rule to the petitioner or the petitioner’s counsel. If the
rple to show cause is issued in prohibition, the underlying proceedings are stayed unless the
rule to show cause provides otherwise. If the Court refuses to issue a rule to show cause,
the petitioner is not precluded from seeking an extraordinary remedy in a circuit court
having jurisdiction.66 The single exception to this is that a petitioner is precluded from
proceeding in circuit court if the Supreme Court of Appeals’ order refusing to issue the rule
to show cause is designated as being “with prejudice.”
66See State ex rel. Richey v. Hill, 216 W.Va. 155, 175, 603 S.E.2d 177, 197 (2004) (Maynard, J.,
concurring) (“In declining to exercise our original jurisdiction and directing petitioners ‘to a more
appropriate court … we are exercising the discretion granted to us by the [state] Constitution.”‘)
(citing Harvard v. Singletary, 733 So.2d 1020, 1021 (Fla.1999) (per curiam) and W.Va. R. App.
P. 14(c)).

6. Response to Rule to Show Cause.

Within 20 days of service of the rule to show cause, unless lengthened or shortened
by the Court, the respondents are required to file an original and 9 copies of a formal
response with the Clerk of the Supreme Court of Appeals under Rule 14(d) of the West
Virginia Rules of Appellate Procedure. As is the case with the petitioner, the response
cannot exceed 50 pages, including any addendum (but excluding any appendix) without the
Court’s permission. If a separate appendix of exhibits is filed, the memorandum of law
cannot exceed so pages and the appendix of exhibits cannot exceed 75 pages without the
Court’s permission. The response may raise any relevant defenses, including matters
addressable by demurrer or motion to dismiss. The response shall answer each allegation
in the petition.

7. Discovery.

In the event that the parties’ filing raise a genuine issue of material fact, Rule 14(e)
of the West Virginia Rules of Appellate Procedure provides that the parties shall advise the
Clerk of the Supreme Court of Appeals in writing of any proposed schedule for taking and
filing depositions. The proposed schedule shall be subject to approval by the Supreme
Court of Appeals. No other or further discovery shall be permitted without the Court’s
approval.

8. Reference.

Under Rule 14(t) of the West Virginia Rules of Appellate Procedure, the Supreme
Court of Appeals, sua sponte or upon written motion of the parties, may determine that the
complexity of the factual issues involved requires reference of the case to a special master
or commissioner. The special master or commissioner has the duty of supervising the
taking of depositions and making such findings of fact as the Court may direct. The special
master’s or commissioner’s findings of fact must be written and the parties have the right
to file written objections to them before the Supreme Court of Appeals considers them.

9 Record.

Under Rule 14(g) of the West Virginia Rules of Appellate Procedure, the record in
an original jurisdiction proceeding consists of the pleadings and addenda, the appendices,
any depositions filed and findings of fact made by the special master.

10. Oral Argument.

Oral argument is permitted in accordance with Rule 12 of the West Virginia Rules
of Appellate Procedure.

APPEAL TO THE UNITED STATES SUPREME COURT.

Following a final decision of the Supreme Court of Appeals, a party has a right to
appeal to the United States Supreme Court pursuant to Rule 25(b) of the West Virginia
Rules of Appellate Procedure. The parties desiring to appeal may request the Supreme
Court of Appeals or any judge thereof to suspend the execution of the decree, judgment or
order.

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