West Virginia Judiciary

Supreme Court of Appeals Argument Docket

Tuesday, January 16, 2018

Rule 19 argument - 10:00 a.m.

Gloria Cowger v. Dennis Cowger, No. 17-0125 - Petitioner appeals the circuit court’s reversal of a family court’s order awarding alimony to petitioner in a sum certain. Petitioner argues that the circuit court erred in ruling that the family court’s findings regarding respondent’s business income were speculative. Further, petitioner argues that the circuit court erred in requiring the family court to make certain findings regarding cash income and labor costs from respondent’s business.

MarkWest Liberty Midstream & Resources v. James Nutt , No. 17-0138 - In this interlocutory appeal, the petitioner appeals the order of the Circuit Court of Doddridge County that granted an injunction to respondent. Petitioner complains that the circuit court failed to apply the proper standard for the issuance of a preliminary injunction, and issued the order without reviewing any evidence.

Rule 20 argument

McElroy Coal v. Michael and Patricia Schoene, 17-0641 - Questions certified by the Fourth Circuit Court of Appeals:

(1) Under West Virginia law, does a deed provision (1902) transferring the right to mine coal “without leaving any support for the overlying stratas and without liability for any injury which may result to the surface from the breaking of said strata,” J.A. 21, prohibit a surface estate owner from pursuing a common law claim for loss of support arising from subsisdence caused by the extraction of coal from below the surface?

If the Supreme Court of Appeals of West Virginia answers the above question in the affirmative, then we respectfully ask that the court also answer the following questions:
(2) Assuming the surface lands and residence of a landowner have been materially damaged from subsidence, does the West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code § 22-3-1 et seq., (“the Act”) authorize an action against the coal mine operator for the damage so arising; or, are landowners only permitted to seek injunctive relief compelling compliance with the Act’s provisions? Compare W.Va. Code § 22-3-25(a), with id. § 22-3-25(f);
(3)(a) If the Act permits a suit for damages, what is the proper measure of damages? Specifically, is a landowner permitted to recover only the diminution in value to the property arising from the subsidence, or can the property owner alternatively recover damages in an amount equal to the cost to repair the property?;
(b) Additionally, if the Act permits a suit for damages, can those damages include compensation for “annoyance, inconvenience, aggravation and/or loss of use”?; and

(4) Lastly, the regulations issued under the Act provide that when a coal mine operator causes subsidence damage to the “structures or facilities,” the operator must either correct it or “compensate the owner . . . in the full amount of the diminution in value” as a result of the mining. See W.Va. Code R. § 38-2-16.2.c.2; see also id. § 38-2-16.2.c.1. These regulations, however, do not designate which party gets to make this election between remedies if the parties fail to reach an agreement. Between the landowner and the coal mine operator, who elects the appropriate remedy and what standards govern that decision?

Keith G. Taylor v. Dale W. Steager, State Tax Commissioner, 16-0910 - By order entered on August 25, 2016, the Circuit Court of Mineral County reversed the August 20, 2015, final decision of the West Virginia Office of Tax Appeals (“OTA”). In its August 20, 2015, final decision, the OTA affirmed the State Tax Commissioner’s December 20, 2013, tax assessment against Mr. Taylor for the 2017 tax year in the total amount of $13,282.18 including tax owed, interest, and penalties. On September 26, 2016, Mr. Taylor appealed the circuit court’s August 25, 2016, order to the extent that the court denied his other pleadings as “superfluous.” In his response to Mr. Taylor’s appeal, the State Tax Commissioner cross-appeals the circuit court’s reversal of the OTA’s final decision affirming the December 20, 2013, tax assessment against Mr. Taylor in the total amount of $13,282.18. This case will be decided on the briefs and record on appeal. There will be no oral argument in this matter.