West Virginia Judiciary

Trial Court Rules | Chapter 2: Civil Matters, Rules 20-29

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Table of Contents Full Table of Contents
  1. Extension of Answer Date
  2. Guardians Ad Litem
  3. Motions Practice, Civil
  4. Trial, Civil
  5. Preparation and Submission of Orders
  6. Mediation
  7. Mass Litigation
  8. Public Funding for Expert Assistance in Child Abuse or Neglect Cases
  9. Reasonable Efforts and Contrary to the Welfare Findings in Juvenile Cases
  10. Business Court Division

Chapter 2: Civil Matters

Rule 20. Extension of Answer Date
Generally

Unless otherwise ordered, the time to answer or otherwise respond to a complaint may be extended by stipulation. The stipulation shall constitute an appearance by any defendant who is a party to it. An extension by stipulation will not affect other deadlines established by the West Virginia Rules of Civil Procedure, these Trial Court Rules, or the court.


Rule 21. Guardians Ad Litem
Application Generally

This Rule applies to all eligible guardian ad litem appointments in circuit court, family court and magistrate court. This rule does not apply to guardians ad litem appointed in abuse and neglect proceedings.

Appointments Generally

A guardian ad litem shall be selected independently of any nomination by the parties or counsel.

Appointed guardians ad litem may (a) serve on a voluntary basis without compensation, (b) be paid by a litigant or a litigant-parent of an infant for whom the appointment is made if the litigant or litigant-parent is not an indigent person, or (c) be paid by the Supreme Court of Appeals as provided in rule 21.05.

Duties Generally

A guardian ad litem shall make a full and independent investigation of the facts involved in the proceeding and make recommendations to the court by testimony or in writing, unless otherwise ordered by the court.

Definitions

For purposes of this Rule, the following definitions shall apply:

  1. "Indigent person" person who qualifies for a waiver of fees pursuant to the provisions of W. Va. Code § 59-2-1.
  2. "Infant" person under the age of eighteen (18) years.
  3. "Incarcerated person" any person who is being held against the person’s will in any facility operated under the authority of any governmental authority in the United States.
  4. "Incompetent person" any person who is admitted to a mental health facility or has been found by the court to be incompetent.
Eligibility for a Supreme Court-Paid Guardian Ad Litem

To be eligible for Supreme Court payment, an attorney must serve as the appointed guardian ad litem, and the person for whom the guardian is appointed must be:

  1. an infant-party who is indigent;
  2. an infant of a party who is indigent or parties who are indigent, provided however, if both parents are parties to the action, both parents must be indigent;
  3. an incarcerated person who is indigent; or
  4. an incompetent person who is indigent;

provided however, in a domestic relations case the cost of a guardian ad litem for a party may be ordered to be paid by a non-indigent party and a guardian ad litem for an infant of the parties may be ordered to be paid by a non-indigent party or the Supreme Court regardless if one or both parties are indigent.

The appointment shall end automatically when a person for whom a guardian ad litem has been appointed either (a) is no longer indigent, or is an infant of a party or parties who are no longer indigent, (b) reaches the age of eighteen (18) years, (c) is no longer an incarcerated person, (d) is released from a mental health facility, or (e) is found by the court to have regained competency. The guardian ad litem shall notify the appointing court when an appointment has been automatically terminated.

Compensation for a Supreme Court-Paid Guardian Ad Litem

Payment shall be made from Supreme Court funds.

Supreme Court-paid guardians ad litem shall be compensated at $80 per hour for out-of-court services, and $100 per hour for in-court services.

The total compensation paid to a guardian ad litem appointed pursuant to the provisions of this rule shall not exceed $3,000 ("Three Thousand") per appointment as of July 1, 2012. However, an appeal to the Supreme Court of Appeals of West Virginia shall be considered a separate case with regards to compensation. The Court will not reimburse the cost of office expenses including but not limited to copying costs, postage, long distance telephone calls and/or fees charged for invoice preparation; provided, however, that the costs of obtaining and copying court records, medical records, school records, and child protective services records will be reimbursed. Mileage will be reimbursed at the standard rate per mile as approved by the Supreme Court. Expenses shall be paid in addition to the compensation provided for herein.

Requests for payment shall be made on forms provided by the Administrative Director of the Court and shall follow all West Virginia State and West Virginia Supreme Court billing regulations, policies and procedures. Requests for payment shall be reviewed and recommended by order of the appointing court prior to submission to the Administrative Director of the Court for payment. The Administrative Director of the Court — or the Administrative Director's designee — shall review and approve all submissions for payment of fees to guardian ad litem.

The Administrative Director of the Court shall have the authority to approve and pay compensation in excess of the amounts stated above in exceptional cases and for good cause shown. Requests for excess compensation shall be made by the appointing judge and sent to the Administrative Director of the Court for approval.

As circumstances may warrant, the court in its discretion may at any time during the proceedings tax the costs of the appointment of a guardian ad litem to the parties and require that any compensation previously paid from court funds be refunded to the Administrative Director of the Court.

Amended by order entered and effective July 1, 2012; and Amended by order entered and effective November 7, 2007.


Motions Practice, Civil
Motions, Responses, and Supporting Memoranda

All motions and responses shall be concise; shall state the relief requested precisely; shall be filed in accordance with the time frames set forth in W.Va. R.Civ.P. 6(d); and may be accompanied by a supporting memorandum of not more than twenty (20) pages in length, double- spaced, and by copies of depositions (or pertinent portions thereof), admissions, documents, affidavits, and other such materials upon which the motion relies. The court for good cause shown may allow a supporting memorandum to exceed twenty (20) pages. In addition to filing and serving on opposing counsel and unrepresented parties, counsel shall deliver to the assigned judge copies of each motion, response, supporting memorandum, and supporting documents or materials.

Motions to Dismiss

Motions to dismiss may be given priority status, provided they are designated prominently as a motion to dismiss and filed as a separate motion.

Hearings on Motions

The court may require or permit hearings on motions, and, with permission of the presiding judicial officer, the hearings may be by telephone. Whenever the court enters an order denying or granting a motion without a hearing, all parties shall be forthwith notified by the court of such order.

Action on Motions

All motions shall be decided expeditiously to facilitate compliance with the deadlines established by the scheduling order. Any motion requiring immediate disposition shall be called to the attention of the court by the party filing such motion. Failure of the court to rule expeditiously on a dispositive motion may be good cause for modification of a scheduling order.

Effect of Failure to Appear at Oral Argument or Hearing

If any of the parties fail to appear at an oral argument or hearing, without prior showing of good cause for non-appearance, the court may proceed to hear and rule on the motion.


Rule 23. Trial, Civil
Non-Jury Matters

Evidence with respect to issues not triable of right by a jury should be heard by the court if practicable. If not practicable, any such issue may be heard by the court on depositions, or the evidence may be taken before a commissioner appointed by the court. A commissioner shall have power to rule upon the admissibility of evidence, with the further right at any time to obtain a summary ruling from the court, or from the judge thereof, upon any question relating thereto. A commissioner shall promptly make such report as the court may require as to such issues, and the court shall enter such judgment thereon as it may deem proper.

The evidence taken before the court on such issues shall, unless waived by the parties, be taken down by the official reporter of the court or, when there is reference to a commissioner, by such official reporter or by any other competent reporter agreed to by the parties in interest or designated by the commissioner, and the evidence or such part or parts thereof as may be required shall in all such cases be promptly transcribed by the reporter as provided for in respect to other matters; and like reporting charges for such actions shall be made, as in other actions, collected and accounted for.

The entire record as thus made up shall be available to any party on petition for appeal.

Cases to be Tried by a Jury : Proposed Jury Instructions; Proposed Verdict Form

Unless otherwise ordered by the presiding judicial officer, not less than three (3) business days prior to the trial date, counsel shall, in jury cases, submit to the court proposed jury instructions with supporting statutory and case authority, special interrogatories, and a verdict form. Counsel shall exchange copies of the proposed instructions, special interrogatories and verdict form prior to their submission to the court. Submissions pursuant to this rule shall not be filed and made a part of the record, unless ordered by the judicial officer.

Voir Dire
  1. The attorneys conducting the case shall be permitted to ask voir dire questions of the prospective jury panel members unless the presiding judicial officer finds that there are justifiable reasons to deny such attorney voir dire. The attorneys shall advise the judicial officer of the subject matter of the voir dire questions at such time prior to the actual questioning of the prospective jury panel as the judicial officer may designate. The judicial officer may allow individual voir dire by the attorneys upon a showing of good cause or where questioning such juror in open court in the presence of the other jury panel members would be prejudicial or cause undue embarrassment to the prospective juror.
  2. If attorney-conducted voir dire is not permitted, the attorneys conducting the case may request that the judicial officer ask specific additional or supplemental voir dire questions of the prospective jury members.
  3. Attorneys may lodge objections to the exercise of judicial discretion in limiting voir dire or to prospective questions at any time prior to and during the examination of prospective jury members. Objections shall be made on the record.
Opening Statements and Closing Arguments
  1. Opening Statements. At the commencement of the trial in a civil action, the party upon whom rests the burden of proof may state, without argument, its claim and the evidence expected to support it. The adverse party may then state, without argument, its defense and the evidence expected to sustain it. If the trial is to the jury, unless the court directs otherwise the opening statements shall be made immediately after the jury is impaneled. If the trial is to the court, the opening statements shall be made immediately after the case is called for trial. For good cause shown, the court, on request by the adverse party, may defer the opening statement for the adverse party until the time for commencing presentation of that adverse party's direct evidence. Opening statements shall be subject to time limitations imposed by the court. In actions involving several parties and unusual procedures, the court, after conferring with the parties to the action, shall direct the order and time of the opening statements in a manner appearing just and proper.
  2. Closing Arguments. The right to open and close the arguments shall belong to the party who has the burden of proof, without regard to whether the defendant offers evidence. Where each of the parties has the burden of proof on one or more issues, the judicial officer shall determine the order of arguments. In actions involving several parties and unusual procedures, the court, after conferring with attorneys for the parties, shall determine the order of arguments in a manner appearing just and proper. Arguments shall be subject to time limitations imposed by the judicial officer, giving due consideration to the length of the trial, the number of witnesses and exhibits, the complexity of issues, and the nature of the case. No more than two (2) attorneys on each side shall argue the case, without leave of the court.

The opening argument of plaintiff before the jury shall be a fair statement of plaintiff's case and shall consume at least one-half of the entire time allotted to plaintiff's counsel for argument. In the event that one-half of the allotted time is not used, one-half shall nevertheless be charged by the court to plaintiff's opening argument.

After plaintiff's opening argument, counsel for defendant may elect to argue the case or may decline. If counsel for defendant declines to present argument, the case will be submitted without further argument by plaintiff or defendant.

Counsel may refer to the instructions to juries in their argument, but may not argue against the correctness of any instruction. The court in its discretion may reread one or more of the instructions. Counsel may not comment upon any evidence ruled out, nor misquote the evidence, nor make statements of fact dehors the record, nor contend before the jury for any theory of the case that has been overruled. Counsel shall not be interrupted in argument by opposing counsel, except as may be necessary to bring to the court's attention objection to any statement to the jury made by opposing counsel and to obtain a ruling on such objection. No portion of a lawbook shall be read to the jury by counsel.

Stipulations

Unless otherwise ordered, stipulations must be in writing, signed by the parties making them or their counsel, and promptly filed with the clerk.


Preparation and Submission of Orders
Generally
  1. Unless otherwise directed by the presiding judicial officer, all orders shall be submitted to the judicial officer promptly, but no later than eleven (11) days after having been directed to do so by the court. When counsel responsible for the preparation and presentation of an order unreasonably delays or withholds its presentation, the order may then be prepared and entered by the judicial officer.
  2. Except for good cause or unless otherwise determined by the judicial officer, no order may be presented for entry unless it bears the signature of all counsel and unrepresented parties.
  3. Although it is preferred that orders be entered in accordance with subsection (b), unless the judicial officer otherwise directs, counsel responsible for the preparation and presentation of an order may submit the original of the proposed order to the judicial officer within eleven (11) days, with a copy to opposing counsel along with a notice to note objections and exceptions to the order within five (5) days after receipt of the proposed order or such lesser time as the judicial officer directs. Opposing counsel shall notify the presiding judicial officer, in writing, of his or her approval of or objection to the order or any portion thereof. In the event this subsection is utilized, the judicial officer shall consider the order for entry upon approval by all counsel, or after five (5) days from its receipt, if no objection is received by the judicial officer.
  4. In the event counsel has any objections regarding the wording or content of a proposed order, counsel shall have the affirmative duty of contacting the preparer thereof before contacting the judicial officer in an effort to seek a resolution of the conflict. If the conflict cannot be resolved in this manner, counsel having an objection shall promptly submit a proposed order to the judicial officer and opposing counsel as set forth in subsection (c) along with a letter to the judicial officer, indicating the reason for the change(s). Within five (5) days following receipt of objections and the responsive proposed order, all counsel shall file a response to the second proposed order. If the judicial officer determines that a hearing is necessary to resolve the conflict, counsel objecting to the order shall be responsible for promptly scheduling the same. Objecting, proposing modifications, or agreeing to the form of a proposed order shall not affect a party's rights to appeal the substance of the order.
Rule 25. Mediation
Scope

These rules govern mediationin the judicial system in West Virginia. These rules are to be read in pari materia with Rules 31 through 39 of the West Virginia Rules of Practice and Procedure for Family Court.

History. Amended by order effective March 8, 2004.

Mediation Defined

Mediation is an informal, non-adversarial process whereby a neutral third person, the mediator, assists disputing parties to resolve by agreement or examine some or all of the differences between them. A judge or hearing officer who renders a decision or who makes a recommendation to the decision-maker in the mediated case is not a neutral third person. In mediation, decision-making discretion remains with the parties; the mediator has no authority to render a judgment on any issue of the dispute. The role of the mediator is to encourage and assist the parties to reach their own mutually acceptable resolution by facilitating communication, helping to clarify issues and interests, identifying what additional information should be collected or exchanged, fostering joint problem-solving, exploring resolution alternatives, and other similar means. The procedures for mediation are extremely flexible, and may be tailored to fit the needs of the parties to a particular dispute. Nothing in this rule shall be construed to deprive a court of its inherent authority to control cases before it or to conduct settlement conferences, which are distinguished from mediation. History. Amended by order effective March 8, 2004.

Selection of Cases for Mediation

Pursuant to these rules and W.Va. R.Civ.P. 16, a court may, on its own motion, upon motion of any party, or by stipulation of the parties, refer a case to mediation. Upon entry of an order referring a case to mediation, the parties shall have fifteen (15) days within which to file a written objection, specifying the grounds. The court shall promptly consider any such objection, and may modify its original order for good cause shown. A case ordered for mediation shall remain on the court docket and the trial calendar.

Listing of Mediators

The West Virginia State Bar shall maintain and make available to circuit courts, interested parties, and the public a listing of persons willing and qualified to serve as mediators in the circuit courts. The State Bar shall establish minimum qualifications for training and experience, application procedures and fees, and other appropriate requirements for persons interested in being listed. The listing shall identify those persons who are willing to serve as mediators on a volunteer basis (i.e., without compensation). The listing shall be open to all persons who meet the qualifications and complete the application required by the State Bar.

Selection of Mediator

Within fifteen (15) days after entry of an order or stipulation referring a case to mediation, the parties, upon approval of the court, may choose their own mediator, who may or may not be a person listed on the State Bar listing. In the absence of such agreement, the court shall designate the mediator from the State Bar listing, either by rotation or by some other neutral administrative procedure established by administrative order of the chief judge of the circuit court.

Compensation of Mediator

If the parties by their own agreement choose a mediator who requires compensation, the parties shall by written agreement determine how the mediator will be compensated. If the parties do not select a mediator by agreement, the court may designate a mediator who may require compensation. If it has established a budget approved by the Supreme Court of Appeals for this purpose, the court may reimburse a volunteer mediator for reasonable and necessary expenses, according to Supreme Court of Appeals travel regulations.

History. Amended by order effective March 8, 2004.

Mediator Disqualification

A mediator shall be disqualified in a mediation in which the mediator’s impartiality might reasonably be questioned, including but not limited to instances where:

  1. the mediator has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts relating to the mediation;
  2. the mediator served as a lawyer in the matter in controversy, or a lawyer with whom the mediator previously practiced law served during association as a lawyer in the matter, or the mediator has been a material witness concerning the matter;
  3. the mediator knows that, individually or as a fiduciary, or the mediator’s spouse, parent or child wherever residing, or any other member of the mediator’s family residing in the mediator’s household, has an economic interest in the subject matter in controversy or is a party to the matter or has any other more than de minimis interest that could be substantially affected by the proceeding;
  4. the mediator or the mediator’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such person:
    1. is a party to the matter, or an officer, director or trustee, of a party;
    2. is acting as a lawyer in the proceeding;
    3. is known by the mediator to have more than de minimis interest that could be substantially affected by the matter;
    4. is to the mediator’s knowledge likely to be a material witness in the matter.

A mediator shall keep informed about their own personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the mediator’s spouse and minor children.

Any party may move the court to disqualify a mediator for good cause. In the event a mediator is disqualified, the parties or the court shall select a replacement in accordance with TCR 25.05 and 25.06.

History. Amended by order effective March 8, 2004.

Provision of Preliminary Information to the Mediator

Before the first mediation session, the court or mediator may require the parties to provide to the mediator pertinent information including but not limited to pleadings, transcripts, and other litigation-related documents.

History. Amended by order effective March 8, 2004.

Time Frames for Conduct of Mediation

Unless otherwise agreed by the parties and the mediator or ordered by the court, the first mediation session shall be conducted within sixty (60) days after appointment of the mediator. Mediation shall be completed within forty-five (45) days after the first mediation session, unless extended by agreement of the parties and the mediator or by order of the court. The mediator is empowered to set the date and time of all mediation sessions, upon reasonable notice to the parties.

Appearances; Sanctions

The following persons, if furnished reasonable notice, are required to appear at the mediation session

  1. each party or the party's representative having full decision-making discretion to examine and resolve issues;
  2. each party's counsel of record; and
  3. a representative of the insurance carrier for any insured party, which representative has full decision-making discretion to examine and resolve issues and make decisions.

Any party or representative may be excused by the court or by agreement of the parties and the mediator. If a party or its representative, counsel, or insurance carrier fails to appear at the mediation session without good cause or appears without decision-making discretion, the court sua sponte or upon motion may impose sanctions, including an award of reasonable mediator and attorney fees and other costs, against the responsible party.

History. Amended by order effective March 8, 2004.

Participation

No party may be compelled by these rules, the court, or the mediator to settle a case involuntarily or against the party's judgment. All parties involved in mediation, however, and their respective representatives, counsel, and insurance carriers shallparticipate fully, openly and knowledgeably in a mutual effort to examine and resolve issues. "Bad faith," as used in insurance litigation as a legal term of art, is not applicable to the mediation process.

History. Amended by order effective March 8, 2004.

Confidentiality of Mediation Process

Mediation shall be regarded as confidential settlement negotiations, subject to W.Va. R.Evid. 408. A mediator shall maintain and preserve the confidentiality of all mediation proceedings and records. Confidentiality as to opposing parties within a mediation session shall be maintained in a manner agreed upon by the parties and mediator. For example, all information may be kept confidential unless disclosure is specifically authorized by the party, or, all information may be shared unless specifically prohibited by the party. A mediator may not be subpoenaed or called to testify or otherwise be subject to process requiring disclosure of confidential information in any proceeding relating to or arising out of the dispute mediated.

History. Amended by order effective March 8, 2004.

Immunity

A person acting as mediator under these rules shall have immunity in the same manner and to the same extent as a circuit judge.

Enforceability of Settlement Agreement

If the parties reach a settlement and execute a written agreement, the agreement is enforceable in the same manner as any other written contract.

Report of Mediator

Within ten (10) days after mediation is completed or terminated, the mediator shall report to the court the outcome of the mediation. Unless otherwise required by the court, the mediator’s report shall state the style of the case, the civil action or other administrative identification number, and whether a settlement was reached. With the written consent of the parties, the mediator may identify any pending motions, discovery, or issues which, if resolved, would facilitate the possibility of settlement or resolution.

History. Amended by order effective March 8, 2004.

Statistical Information

The Supreme Court of Appeals shall determine the repository of statistical records and the method for statistical reporting on court-based mediation. The courts, mediators, parties, and counsel shall cooperate with requests for information under this rule. Court-based mediation statistics compiled at the direction of the Supreme Court of Appeals shall be accessible by the public in the same manner as other court records.

History. Amended by order effective March 8, 2004.


Rule 26. Mass Litigation
Mass Litigation — Preamble

There is hereby adopted a process for efficiently managing and resolving mass litigation which includes the establishment of a Mass Litigation Panel.

Mass Litigation Panel

The Mass Litigation Panel "Panel" consists of seven (7) active or senior status circuit court judges who shall be appointed by the Chief Justice, with the approval of the Supreme Court of Appeals. Each appointment is for a term of three (3) years, with two (2) judges to be appointed each year; provided however, that beginning in 2009 and in every third year thereafter, three (3) judges shall be appointed. There is no prohibition against serving successive terms. The Chief Justice shall annually designate a Panel member to serve as its Chair to preside over the activities of the Panel and to report to the Supreme Court of Appeals.

Application

These rules apply to and govern all actions in the circuit courts referred and transferred by the Chief Justice as Mass Litigation to the Panel. These rules shall not be construed to limit the jurisdiction of the circuit courts, as established by law, or as creating any new cause of action.

Definitions

For purposes of this Rule, the following definitions apply:

  1. "Mass Litigation" — Two (2) or more civil actions pending in one or more circuit courts:
    1. involving common questions of law or fact in mass accidents or single catastrophic events in which a number of people are injured; or
    2. involving common questions of law or fact in "personal injury mass torts" implicating numerous claimants in connection with widely available or mass-marketed products and their manufacture, design, use, implantation, ingestion, or exposure; or
    3. involving common questions of law or fact in "property damage mass torts" implicating numerous claimants in connection with claims for replacement or repair of allegedly defective products, including those in which claimants seek compensation for the failure of the product to perform as intended with resulting damage to the product itself or other property, with or without personal injury overtones; or
    4. involving common questions of law or fact in "economic loss" cases implicating numerous claimants asserting defect claims similar to those in property damage circumstances which are in the nature of consumer fraud or warranty actions on a grand scale including allegations of the existence of a defect without actual product failure or injury; or
    5. involving common questions of law or fact regarding harm or injury allegedly caused to numerous claimants by multiple defendants as a result of alleged nuisances or similar property damage causes of action.
  2. "Liaison Counsel" — Attorneys designated by the Presiding Judge and charged with essentially administrative matters, including communications between the court and other plaintiff or defense counsel; receiving and distributing notices, orders, motions, and briefs for the group; convening meetings of counsel; advising other counsel and unrepresented parties of developments; and otherwise assisting in the coordination of activities and positions.
  3. "Lead Counsel" — Attorneys designated by the Presiding Judge and charged with formulating and presenting positions on substantive and procedural issues during the litigation by initiating and organizing discovery requests and responses; conducting the principal examination of deponents; employing experts; arranging for support services; serving as the principal attorneys at trial for their respective plaintiff or defense group or subgroups; and organizing and coordinating the work of the other attorneys on their respective plaintiff or defense trial team.
  4. "Certificate of Service List" — The document prepared by Liaison Counsel from the Notices of Appearance and information from self-represented parties and certified by the Presiding Judge as the official contact list of counsel and self-represented parties for service or other notice.
  5. "Notice of Appearance" — The document all counsel shall file and serve containing the name and address of the party or parties each counsel represents, the name and address of the attorney, the name of the attorney's law firm, the attorney's West Virginia State Bar Identification Number, if applicable, or pro hac vice admission status, telephone number, fax number, and electronic mail address.
  6. "Notice of Withdrawal" — The document all counsel shall file and serve on all parties, after complying with Trial Court Rule 4.03(b), if counsel no longer represents a party or parties, or after a party is dismissed.
  7. "Presiding Judge" — One or more members of the Panel assigned by order of the Panel Chair, with the advice and consent of the Panel, to preside in Mass Litigation or proceedings therein referred by the Chief Justice to the Panel. "Presiding Judge" also includes an active or senior status circuit court judge or judges recommended by the Panel and assigned by the Chief Justice to assist the Panel in resolving Mass Litigation or proceedings therein.
  8. "Lead Judge" — The judge appointed by order of the Panel Chair, with the advice and consent of the Panel, to lead in Mass Litigation in which more than one Presiding Judge is assigned.
Panel Duties

The Panel shall:

  1. develop and implement case management and trial methodologies to fairly and expeditiously resolve Mass Litigation referred to the Panel by the Chief Justice;
  2. preside in Mass Litigation or proceedings therein referred by the Chief Justice;
  3. request the assignment by the Chief Justice of additional active or senior status circuit court judges to assist the Panel in resolving Mass Litigation or proceedings therein as needed, and provide assistance and guidance to such judges when assigned;
  4. recommend for adoption by the Supreme Court of Appeals rules for conducting the business of the Panel as needed;
  5. report periodically to the Chief Justice concerning the Panel's activities;
  6. take such action as is reasonably necessary and incidental to the powers and responsibilities conferred by this rule or by the specific directive of the Chief Justice; and
  7. develop and implement plans for central organization, including, but not limited to staffing, record keeping, and other assistance for the management of Mass Litigation, the transfer and storage of Mass Litigation court files to the appropriate circuit, the implementation of appropriate technology, and the adoption of necessary rules and procedures.
Motion to Refer Actions as Mass Litigation
    1. Any party, judge, or the Administrative Director of the Courts may seek a referral of actions as Mass Litigation to the Panel by filing a Motion to Refer to the Mass Litigation Panel in any circuit court in which an action is pending. The motion shall identify the nature of the actions sought to be referred, the number of plaintiffs, the number of defendants, the number of actions pending, the basis for the request, a listing of the particular actions in all the circuits for which a referral is being requested, and, if known, whether additional related actions may be filed in the future.
    2. The motion may be filed within six (6) months after the filing date of the action; provided, however, that a judge or the Administrative Director of the Courts may file the motion at any time, if it is determined the litigation qualifies as Mass Litigation that may be resolved more expeditiously by referral to the Panel.
    3. The motion shall be served on all the parties, including those parties not represented by counsel, all judges in actions which are the subject of the motion, and the Panel's Mass Litigation Manager. Any party shall have twenty (20) days after the motion is filed to file a reply memorandum stating its position and opposition, if any. Any affected judge may file a reply memorandum within twenty (20) days thereafter.
  1. The filing of a Motion to Refer to the Mass Litigation Panel shall not operate as a stay of the civil action(s).
    1. After the response periods have expired, the judge of the circuit court in which the Motion to Refer to the Mass Litigation Panel was filed shall direct the clerk of the circuit court to transmit to the Clerk of the Supreme Court of Appeals for filing a copy of the motion and all reply memoranda for review by the Chief Justice. Upon review of the motion and reply memoranda, the Chief Justice may act directly upon the motion or may direct the Panel to conduct a hearing and make recommendations concerning coordinated or consolidated proceedings under this rule.
    2. If the Chief Justice directs, a Panel member or members shall hold a hearing to receive evidence and entertain arguments by the parties or any judge, and shall submit findings of fact and a recommendation to the Chief Justice.
    3. The Chief Justice, whether acting directly upon the motion or upon the recommendation of the Panel member or members, shall enter an order either granting or denying the motion, or providing modified relief. The order shall be filed with the Clerk of the Supreme Court of Appeals who shall send a copy of the order to the Panel Chair and to the clerk(s) of the circuit court(s) where the actions are pending for service on all parties.
  2. Nothing contained in this rule affects the authority of a circuit court judge to act independently under the provisions of W. Va. R.Civ.P. 42.
Assignment of Presiding Judge in Mass Litigation
  1. An order from the Chief Justice granting a Motion to Refer to the Mass Litigation Panel is a transfer of Mass Litigation to the Panel. Upon receipt of the order, the Panel Chair shall, with the advice and consent of the Panel, by order assign a Presiding Judge. If more than one Presiding Judge is assigned, the Panel Chair shall, with the advice and consent of the Panel, by order appoint a Lead Judge, and in such event, to the extent possible, require appropriate measures to be adopted to insure uniformity of decisions, including the requirement for all pre-trial dispositive motions to be decided by a majority of the Presiding Judges assigned to preside in the Mass Litigation or proceedings therein.
  2. If the Panel requests the assignment of additional active or senior status circuit court judges to assist in resolving Mass Litigation or proceedings therein, the request and recommendation shall be filed with the Clerk of the Supreme Court of Appeals and sent to the Chief Justice. The order of assignment by the Chief Justice shall be filed with the Clerk and sent by the Clerk to the Panel Chair and to the clerk of the circuit court where the Mass Litigation is pending for service on all parties.
  3. The Panel Chair may act on any properly filed motions until the Mass Litigation is assigned to a Presiding Judge.
Powers of Presiding Judge
  1. The Presiding Judge is authorized to preside in any circuit in which Mass Litigation or proceedings therein are pending, or in which Mass Litigation or proceedings therein are transferred for purposes consistent with the Panel's case management and trial methodologies.
  2. With the advice and consent of the Panel, the Presiding Judge is authorized to consolidate and/or transfer Mass Litigation or proceedings therein from one circuit to one or more other circuits to facilitate the Panel's case management and trial methodologies and to order the transfer of court files to the appropriate circuit.
  3. In the absence of an agreement of the parties, the Presiding Judge is authorized to appoint Liaison Counsel and/or Lead Counsel and, after consultation with all counsel, to determine the method and manner of compensation for Liaison Counsel and/or Lead Counsel.
  4. The Presiding Judge is authorized to adopt a case management order that specifies the use of a Certificate of Service List, Notice of Appearance and/or Notice of Withdrawal and, after considering the due process rights of the parties, to adopt any procedures deemed appropriate to fairly and efficiently manage and resolve Mass Litigation.
  5. The Presiding Judge shall have the sole authority to supervise the jury selection process, to disqualify a prospective juror from jury service, and to excuse jurors from juror service in Mass Litigation to which the Presiding Judge has been assigned, all pursuant to W.Va. Code § 52-1-1 et seq.
Motion to Join in Existing Mass Litigation
    1. This procedure applies if the initial order by the Chief Justice granting a Motion to Refer to the Mass Litigation Panel authorizes the Panel to transfer and join with the existing Mass Litigation any similar or related actions subsequently filed in any circuit court.
    2. A Motion to Join in Existing Mass Litigation shall be filed with the clerk of the circuit court(s) where the action(s) sought to be transferred are pending and with the clerk of the circuit court where the existing Mass Litigation is pending. The motion shall set forth the identity and nature of the action(s) sought to be transferred, the number of plaintiffs, the number of defendants, the number of actions pending, the basis for the request, a listing of the particular actions in all the circuits for which a transfer is requested, and, if known, whether additional related actions may be filed in the future. The motion shall be served on all parties, including those not represented by counsel, and sent to all judges in the action(s) sought to be transferred and to the Presiding Judge in the existing Mass Litigation sought to be joined.
    3. The Presiding Judge in the existing Mass Litigation shall, with the advice and consent of the Panel, grant or refuse the motion by written order. The order shall be filed with the clerk of the circuit court where the existing Mass Litigation is pending, and shall be sent to the Panel Chair, and to the clerk(s) of the circuit court(s) where the action(s) sought to be transferred are pending for service on all parties.
  1. If the initial order by the Chief Justice granting a Motion to Refer to the Mass Litigation Panel does not authorize the Panel to transfer and join with the existing Mass Litigation any subsequently filed actions, the procedure under Rule 26.06 shall be followed.
Class Actions

If any Mass Litigation transferred to the Panel is later certified as a class action by any court pursuant to Rule 23, W. Va. R.Civ.P., the Panel may request the Chief Justice to transfer the Mass Litigation from the Panel to the appropriate circuit court.

Official Reporter

In each Mass Litigation proceeding, the Presiding Judge shall determine and designate the official court reporter to transcribe proceedings. No other transcriber or transcription shall be permitted without consent of the Presiding Judge.

Scope; Conflicts

If these Rules conflict with other rules or statutes, these rules shall apply; otherwise all applicable Rules apply.


Rule 27. Public Funding for Expert Assistance in Child Abuse or Neglect Cases
Motion and Appointment

Upon motion by a party or upon its own motion, the court may appoint an expert to perform a medical or psychological evaluation and may require such expert to testify, pursuant to West Virginia Code § 49-6-4.

Compensation of Experts

The court shall by order establish in advance the reasonable fees and expenses to be paid to an expert. Payment shall be as follows: Upon completion of services by an expert, the court shall, by order, direct the State Department of Health and Human Resources to pay for the expert's evaluation, report writing, consultation, or other preparation; and the court shall, by order, direct payment by the Supreme Court's Administrative Office for the expert's fee and expenses entailed in appearing to testify as a witness.


Rule 28. Reasonable Efforts and Contrary to the Welfare Findings in Juvenile Cases
 

After any juvenile delinquency or abuse and neglect proceeding has been initiated or transferred to circuit court, any party may contest the making or refusal to make "reasonable effort" and "contrary to the welfare" findings required by Title IV-E of the Social Security Act, by any magistrate court, juvenile referee or circuit court at the initial stages of such proceeding.


Rule 29. Business Court Division
Business Court Division — Preamble

In accordance with West Virginia Code § 51-2-15, there is hereby adopted a process for efficiently managing and resolving litigation involving commercial issues and disputes between businesses that includes the establishment of a Business Court Division to handle a specialized court docket within the circuit courts.

Business Court Division

The Business Court Division "Division" consists of up to seven (7) active or senior status circuit court judges who shall be appointed by the Chief Justice, with the approval of the Supreme Court of Appeals. Each appointment is for a term of seven (7) years. In 2012 at least three judges shall be appointed, with subsequent appointments to be made in such a fashion as to insure that the terms are staggered. Beginning in 2012 and every three years thereafter, the Chief Justice shall designate a judge of the Division to serve as its Chair to preside over the activities of the Division and to report to the Supreme Court of Appeals. There is no prohibition against serving successive terms, either as judge or as Chair of the Division.

Application

These rules apply to and govern all actions in the circuit courts that are referred and transferred by the Chief Justice as Business Litigation to the Division. These rules shall not be construed to limit the jurisdiction of the circuit courts or to create any new cause of action.

Definitions

For purposes of this Rule, the following definitions apply:

  1. "Business Litigation" — one or more pending actions in circuit court in which:
    1. the principal claim or claims involve matters of significance to the transactions, operations, or governance between business entities; and
    2. the dispute presents commercial and/or technology issues in which specialized treatment is likely to improve the expectation of a fair and reasonable resolution of the controversy because of the need for specialized knowledge or expertise in the subject matter or familiarity with some specific law or legal principles that may be applicable; and
    3. the principal claim or claims do not involve: consumer litigation, such as products liability, personal injury, wrongful death, consumer class actions, actions arising under the West Virginia Consumer Credit Act and consumer insurance coverage disputes; non-commercial insurance disputes relating to bad faith, or disputes in which an individual may be covered under a commercial policy, but is involved in the dispute in an individual capacity; employee suits; consumer environmental actions; consumer malpractice actions; consumer and residential real estate, such as landlord-tenant disputes; domestic relations; criminal cases; eminent domain or condemnation; and administrative disputes with government organizations and regulatory agencies, provided, however, that complex tax appeals are eligible to be referred to the Business Court Division.
  2. "Business Litigation Assignment Region" — a group of existing judicial circuits that meets the population requirements set forth in West Virginia Code § 51-2-15(b). The Assignment Regions are:
  3. Assignment Region A Barbour, Harrison, Lewis, Marion, Monongalia, Preston, Taylor, and Upshur Counties
    Assignment Region B Brooke, Doddridge, Hancock, Marshall, Ohio, Pleasants, Ritchie, Tyler, Wetzel, Wood, and Wirt Counties
    Assignment Region C Calhoun, Jackson, Kanawha, Mason, Putnam, and Roane Counties
    Assignment Region D Boone, Cabell, Lincoln, Logan, Mingo, and Wayne Counties
    Assignment Region E Braxton, Clay, Fayette, Gilmer, Nicholas, Raleigh, Webster, and Wyoming Counties
    Assignment Region F Greenbrier, McDowell, Mercer, Monroe, Pocahontas, and Summers Counties
    Assignment Region G Berkeley, Grant, Hampshire, Hardy, Jefferson, Mineral, Morgan, Pendleton, Randolph and Tucker Counties
  4. " Central Office of the Business Court Division " — a location designated by the Supreme Court to act as the central administrative headquarters for the operation of the Business Court Division.
  5. "Presiding Judge" — A member of the Division assigned by order of the Division Chair, with the advice and consent of the Division, to preside in Business Litigation or proceedings therein referred by the Chief Justice to the Division.
  6. "Resolution Judge" — A member of the Division assigned by order of the Division Chair, with the advice and consent of the Division, to mediate, arbitrate, or provide any other form of dispute resolution agreed to by the parties. To protect confidentiality of the mediation process, communication between the presiding and resolution judge regarding the mediation during or after the process shall be limited to procedural status or other matters agreed to by all parties. The presiding judge will retain control and jurisdiction over the case.
Division Duties

The Division shall:

  1. develop and implement effective case management and trial methodologies to fairly and expeditiously resolve Business Litigation referred to the Division by the Chief Justice;
  2. preside over Business Litigation or proceedings therein referred to the Division by the Chief Justice;
  3. recommend for adoption by the Supreme Court of Appeals rules for conducting the business of the Division as needed;
  4. make an annual report to the Supreme Court and communicate with the Chief Justice and the Administrative Director concerning the Division's activities as requested;
  5. take all such necessary actions incidental to the powers and responsibilities conferred by this rule, as well as actions specifically directed by the Chief Justice; and
  6. develop and implement plans for central organization, including, but not limited to staffing, record keeping, transfer and storage of Division files to the appropriate judicial circuit, implementation of appropriate technology, adoption of necessary procedures, and any other administrative action necessary to achieve the effective management of Business Litigation.
Motion to Refer Actions as Business Litigation
    1. Any party or judge may seek a referral of Business Litigation to the Division by filing a Motion to Refer to the Business Court Division with the Clerk of the Supreme Court of Appeals of West Virginia. The motion shall identify the nature of the action(s) sought to be referred, the basis for the request, and, if known, whether additional related actions are pending or may be filed in the future. A copy of the complaint, answer, docket sheet and any other documents that support referral under Trial Court Rule 29.04(a) shall be attached to the motion.
    2. The motion shall be filed after the time to answer the complaint has expired. For good cause shown to the Chief Justice, the motion may be filed sooner.
    3. The motion shall be served on all the parties, including those parties not represented by counsel, all judges in action(s) that are the subject of the motion, the circuit clerk where the case is pending, and the Central Office of the Business Court Division.
    4. Any party or affected judge shall have twenty (20) days after the motion is filed to file a reply memorandum stating its position and opposition, if any. any reply memorandum must be filed with the Clerk of the Supreme Court of Appeals and served in accordance with Trial Court Rule 29.06(a)(3). The Chief Justice shall have the authority to grant or deny the motion to refer without response for good cause shown.
  1. The filing of a Motion to Refer shall not operate as a stay of the civil action(s), unless otherwise ordered by the judge of the circuit court in which the case is pending.
    1. After the response period has expired, upon review of the motion and reply memoranda, the Chief Justice may act directly upon the motion or may direct the Division to conduct a hearing.
    2. If the Chief Justice directs, a Division member or members shall hold a hearing to receive evidence and entertain arguments by the parties or any judge, and shall submit findings of fact and a recommendation to the Chief Justice.
    3. The Chief Justice, whether acting directly upon the motion or upon the recommendation of the Division member or members, shall promptly enter an order either granting or denying the motion, or providing modified relief. The order shall be filed with the Clerk of the Supreme Court of Appeals who shall send a copy of the order to the Division Chair, to the Central Office of the Business Court Division, and to the clerk(s) of the circuit court(s) where the action(s) are pending for service on all parties.
  2. Nothing contained in this rule affects the authority of a circuit court judge to act independently under the provisions of W. Va. R.Civ.P. 42.
Assignment of Presiding and Resolution Judge in Business Litigation
  1. An order from the Chief Justice granting a Motion to Refer is a transfer of Business Litigation to the Division. Upon receipt of the order, the Division Chair shall, with the advice and consent of the Division, enter an order assigning Presiding and Resolution Judges. The Division Chair may serve as a Presiding or Resolution Judge.
  2. Upon referral by the Chief Justice and assignment by the Division Chair, the Presiding Judge is authorized, pursuant to Article VIII § 3 of the West Virginia Constitution, to preside over the action in any county that is within the same Business Litigation Assignment Region in which the case is filed.
Powers and Duties of Presiding and Resolution Judges
  1. The Presiding Judge is authorized to preside in any circuit in which Business Litigation or proceedings therein are pending, or in which Business Litigation or proceedings therein are transferred for purposes consistent with the Division's case management and trial methodologies.
  2. With the advice and consent of the Division, the Presiding Judge is authorized to consolidate and/or transfer Business Litigation or proceedings therein from one circuit to one or more other circuits to facilitate the Division's case management and trial methodologies and to order the transfer of court files to the appropriate circuit.
  3. Within thirty (30) days of being assigned, the Presiding Judge shall conduct a case management and scheduling conference.
  4. Within fifteen (15) days of the case management conference, the Presiding Judge shall issue a case management order that includes any deadlines or procedures deemed appropriate to fairly and efficiently manage and resolve the Business Litigation.
  5. The Presiding Judge may schedule conferences, motions, mediation, pretrial hearings, and trials in any circuit court courtroom within the Assignment Region, with due consideration for the convenience of the parties.
  6. The Presiding Judge shall have the sole authority to supervise the jury selection process, to disqualify a prospective juror from jury service, and to excuse jurors from juror service in Business Litigation to which the Presiding Judge has been assigned, all pursuant to W.Va. Code § 52-1-1 et seq.
  7. The Business Litigation should proceed to final judgment in an expedited manner. The time standards for general civil cases set forth in Trial Court Rule 16.05 shall apply; provided, however, that the Presiding Judge shall make all reasonable efforts to conclude Business Litigation within ten (10) months from the date the case management order was entered. All other time standards for service of notices and entry of order set forth in the West Virginia Rules of Civil Procedure shall apply unless modified by order entered by the Presiding Judge.
  8. The Resolution Judge is authorized to schedule and conduct mediation of the case or any Alternative Dispute Resolution as agreed to by the parties and the Resolution Judge in an attempt to resolve the case in an expedient and efficient manner.
Scope; Conflicts

If these Rules conflict with other rules or statutes, these rules shall apply; otherwise all applicable Rules apply.

Chapter 3

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