Roger D. Campbell v. CSX Transportation, Inc. ( 2019 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Roger D. Campbell, Kathryn D. Campbell,
Heather Leigh Bailey, Bobby Lee Bailey, FILED
Terry Lee Plumley, II, Shirley Marie Grimmett, September 9, 2019
Donna Jean Plymale, Shanda Miller, EDYTHE NASH GAISER, CLERK
Rebecca A. May, and Carol Murphy, SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Plaintiffs Below, Petitioners
vs) No. 17-1034 (Logan County 12-C-68)
CSX Transportation, Inc.,
W.W. McDonald Land Company, and
Skidrow Timbering Co.,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioners and plaintiffs below Roger D. Campbell, Kathryn D. Campbell, Heather Leigh
Bailey, Bobby Lee Bailey, Terry Lee Plumley, II, Shirley Marie Grimmett, Donna Jean Plymale,
Shanda Miller, Rebecca A. May, and Carol Murphy, by counsel D. Adrian Hoosier, II and Erica
Lord, appeal three orders entered on October 23, 2017, in the Circuit Court of Logan County that
granted the respective motions for summary judgment filed by respondents and defendants below
CSX Transportation, Inc. (“CSX”), W.W. McDonald Land Company (“WWMLC”), and Skidrow
Timbering Company (“Skidrow”). Both Respondent CSX, by counsel Luke Lafferre, and
Respondent WWMLC, by counsel Robert H. Sweeney, Jr. & Kierston Eastham Rosen, filed
responses in support of the circuit court orders. Respondent Skidrow did not file a response.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s orders granting summary judgment in favor
of Skidrow and WWMLC is appropriate under Rule 21 of the Rules of Appellate Procedure. With
regard to CSX, this matter is reversed and remanded for entry of an order containing findings of
fact and conclusions of law that are appropriate for appellate review.
In June of 2010, certain areas of Logan County, West Virginia, were flooded following
severe rain storms. Petitioners, who are residents of the unincorporated town of Landville, alleged
1
claims1 in the Circuit Court of Logan County against CSX, WWMLC, and Skidrow, and other
defendants asserting that they negligently caused or contributed to the flooding that damaged
petitioners’ property.2 According to petitioners, the historic flood waters did not come from the
river located adjacent to their properties; rather, petitioners alleged that surface water runoff
emanated from the mountain where respondents were conducting commercial activities causing
harm to petitioners’ real and personal property.
Petitioners alleged that CSX “owns and maintains rails and culverts in the subject area”
and that CSX has a duty to make sure the culverts are clear in order to prevent flooding. Petitioners
alleged that CSX was negligent in designing, constructing, and maintaining the culverts and
drainage structures around its railroad track located across the highway from petitioners’
properties. Petitioners specifically alleged that CSX “negligently designed its culverts/drains,
failed to clear its culverts/drains from debris, negligently built a wall along side its rail-road, . . .
and failed to ensure that run off water could exit under Route 80 and into the Guyandotte River.”3
Petitioners further alleged that the culvert “behind [the] wall or mound” “built by CSX” was
“blocked with debris” and “allowed water to pool”; that the water “broke through the wall” and
“flowed into” “CSX[-]maintained culverts located 10-15 feet from the rail-road”; and that these
culverts were also “blocked with debris” so “water pooled and crested over the rail-road, over
Route 80 and into [petitioners’] homes.”
WWMLC owns the land that constitutes the drainage basin, or water shed, that flows
toward petitioners’ properties. Petitioners alleged that WWMLC leased or provided access to its
land to the other defendants to conduct various business operations; that WWMLC owed
petitioners a duty of care to ensure that such operations were conducted in compliance with state
and federal regulations and in a manner that would not harm petitioners’ properties; and that
WWMLC breached that duty. With regard to Skidrow, a timbering company that conducted
operations on land owned by WWMLC above Landville in 2008, petitioners alleged that Skidrow
failed to comply with state and federal regulations relating to its timbering operations and failed
to have a run-off plan to ensure the safety of petitioners’ properties.
Petitioners alleged claims of negligence, intentional private nuisance, unintentional private
1
Petitioners’ original complaint was filed in March of 2012. A “Second Amended
Complaint and More Definite Statement” was filed in March of 2016. On June 27, 2016, petitioners
filed a motion for leave to file a “supplemental” third amended complaint “in order to name Gas
Field Services, LLC, as a party.” It is unclear from the record on appeal when the motion for leave
was granted and the third amended complaint was filed.
2
The other defendants were Equitable Gas Company; General Pipeline Construction, Inc.;
EQT Production Co. d/b/a Equitable Production Company; the West Virginia Department of
Transportation/Division of Highways; Appalachian Fuels, LLC; and Gas Field Services, LLC.
These defendants are no longer parties.
3
Route 80 borders petitioners’ properties to the east while the Guyandotte River borders
petitioners’ properties to the west.
2
nuisance, public nuisance, prospective nuisance, trespass, recklessness or gross negligence,
intentional infliction of emotional distress, negligent infliction of emotional distress, interference
with riparian rights, “violation of statutes” (i.e., West Virginia Code § 22-3-13—involving general
environmental protection performance standards for surface mining), damages for securing water
supply, punitive damages, and res ipsa loquitur. Petitioners sought compensatory and punitive
damages and injunctive relief.4
In April of 2016, CSX filed a motion to dismiss petitioners’ complaint on the ground that
the circuit court lacked subject matter jurisdiction because, under the Supremacy Clause of the
United States Constitution, Article VI, clause 2, the Interstate Commerce Commission
Termination Act of 1995 (“ICCTA”) expressly preempts state law claims, such as those asserted
by petitioners, concerning the design, construction, operation, and maintenance of CSX’s railway
facilities and structures.
By order entered October 21, 2016, the circuit court granted CSX’s motion to dismiss, in
part, finding that, under 49 U.S.C. § 10501 of the ICCTA, the Safety Transportation Board has
exclusive jurisdiction over petitioners’ claims against CSX “that the culverts and drainage
structures were negligently designed, constructed, and/or maintained,” and “that the clearing and
cutting of vegetation” are all “related to the construction, maintenance, and operation of tracks and
facilities as contemplated by the ICCTA and are therefore preempted.” To the extent petitioners
alleged that CSX negligently discarded debris, the circuit court denied CSX’s motion to dismiss
on such claims as they “are not related to the normal construction, maintenance, and operation of
tracks and facilities as contemplated by the ICCTA” and are, therefore, not preempted.
On August 14, 2017, Skidrow filed a motion for summary judgment as to all of petitioners’
claims, WWMLC filed a motion for summary judgment as to all of petitioners’ claims other than
those claiming private nuisance, and CSX filed a motion for summary judgment as to the claims
that remained following entry of the October 21, 2016, dismissal order.
On August 30, 2017, WWMLC filed a motion in limine to exclude the testimony of
petitioners’ expert environmental engineer, Dr. Scott Simonton, whose deposition had previously
been taken. Petitioners failed to file a response.5
Meanwhile, petitioners, by counsel Erica Lord, filed a motion to stay the proceedings, or,
alternatively, to continue the proceedings for ninety days due to the temporary suspension of lead
4
The case was stayed by a federal bankruptcy court for three years as a result of Defendant
Appalachian Fuels, LLC’s bankruptcy proceedings. The federal bankruptcy stay was lifted by
order entered on August 20, 2015, and the circuit court lifted its stay by order entered on September
14, 2015.
5
A review of the docket sheet reveals that Skidrow and CSX also filed motions to exclude
Dr. Simonton’s testimony and that petitioners failed to respond to either motion. Neither Skidrow’s
nor CSX’s motion was made a part of the appendix record.
3
counsel D. Adrian Hoosier II’s law license on August 30, 2017. Attorney Hoosier’s law license
was to be automatically reinstated on December 1, 2017.
A summary judgment hearing was scheduled for September 27, 2017. Prior to the hearing,
petitioners filed untimely responses to the motions for summary judgment filed by CSX6 and
Skidrow. Additionally, petitioners submitted to WWMLC’s counsel and the circuit court a three-
page unsigned response to WWMLC’s summary judgment motion.
A hearing on respondents’ motions for summary judgment was conducted on September
27, 2017, at which time the circuit court orally denied petitioners’ motion to continue/for a stay.
By order entered on October 23, 2017, the court granted all three respondents’ motions for
summary judgment and, in the order granting WWMLC’s motion, also granted WWMLC’s motion
in limine to exclude the testimony of petitioners’ expert witness. It is from these orders that
petitioners now appeal.7
Pursuant to Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment
should be awarded “if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Thus, “[a] motion for
summary judgment should be granted only when it is clear that there is no genuine issue of fact to
be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syl.
Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).
We note, as well, that “the party opposing summary judgment must satisfy the burden of proof by
offering more than a mere ‘scintilla of evidence’ and must produce evidence sufficient for a
reasonable jury to find in a nonmoving party’s favor. Anderson [v. Liberty Lobby, Inc.], 477 U.S.
[242] at 252, 106 S.Ct. [2505] at 2512, 91 L.E.2d [202] at 214 [1986].” Williams v. Precision Coil,
Inc., 194 W. Va. 52, 60, 459 S.E.2d 329, 337 (1995). On appeal, this Court accords a plenary
review to the circuit court’s order granting summary judgment: “[a] circuit court’s entry of
summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d
755 (1994). Using these standards, we will review each of the circuit court’s summary judgment
orders in turn. 8
6
CSX advised the circuit court at the summary judgment hearing that it did not object to
the court’s consideration of petitioners’ late-filed response.
7
With regard to the present appeal, on April 12, 2018, respondents jointly filed a motion
to direct petitioners to correct their brief and appendix, or, in the alternative, to dismiss the appeal.
By order entered on October 4, 2018, this Court refused, as moot, respondents’ joint motion to
direct petitioner to correct because a corrected brief and appendix had previously been filed. In
that same order, this Court also refused the motion to dismiss the appeal.
8
West Virginia Rule of Appellate Procedure 5(b) requires that “the party appealing shall
file the notice of appeal and the attachments required in the notice of appeal form contained in
Appendix A of these Rules.” Appendix A requires that petitioners “ATTACH COPIES OF ALL
ORDERS BEING APPEALED.” To the extent petitioners seek to challenge the October 21, 2016,
4
In its order granting WWMLC’s motion for summary judgment, the circuit court also
granted WWMLC’s motion in limine to exclude the testimony of petitioners’ expert witness. In its
motion to exclude, WWMLC argued that Dr. Simonton’s “testimony is inadequate because it fails
to meet the testimonial and evidentiary requirements” of the West Virginia Rules of Evidence and
Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589-90 (1993). WWMLC further argued that Dr.
Simonton’s expert opinion that the gas and timbering activities that occurred on WWMLC’s
property increased the rate of run-off and contributed to the flooding was rendered without
reviewing relevant scientific literature, without “obtain[ing] and review[ing] the relevant rainfall
or timbering or gas activity data,” or without “perform[ing] any modeling that would show the
difference in runoff pre- and post-activity . . . .”
As previously noted, petitioners failed to file a response to WWMLC’s motion to exclude.
In its order granting WWMLC’s motion, the circuit court agreed with WWMLC’s arguments and
ultimately concluded that “Dr. Simonton did not employ any scientific method to develop his
opinions, and lacked the proper factual basis to assist the jury in determining the facts in issue.”
On appeal, petitioners argue that the circuit court erred in excluding Dr. Simonton’s expert
testimony. Petitioners do not dispute that they failed to respond or otherwise object to WWMLC’s
motion in limine to exclude Dr. Simonton’s expert testimony, nor do they suggest that they did not
receive proper notice of the motion. Nonetheless, they now argue that Dr. Simonton’s opinion
complied with the requirements of West Virginia Rule of Evidence 702, that Daubert does not
apply, and that Dr. Simonton’s testimony was sufficiently reliable under Gentry v. Magnum, 195
W. Va. 512, 466 S.E.2d 171 (1995). This Court has repeatedly held
that,‘““[w]here objections were not shown to have been made in the trial court, and the matters
concerned were not jurisdictional in character, such objections will not be considered on appeal.”
Syllabus Point 1, State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964).’
Syl. pt. 3, O’Neal v. Peake Operating Co., 185 W.Va. 28, 404 S.E.2d 420 (1991).” Syl. Pt. 5,
Voelker v. Frederick Bus. Prop. Co., 195 W. Va. 246, 465 S.E.2d 246 (1995). “‘To be clear, the
party complaining on appeal of the admission of evidence bears sole responsibility for adequately
preserving the record on meaningful appellate review.’” Id. at 253, 465 S.E.2d at 253 (quoting
Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 114, 459 S.E.2d 374, 391
(1995)). See also Syl. Pt. 1, in part, Maples v. W. Va. Dep’t of Commerce, Div. of Parks and
Recreation, 197 W. Va. 318, 475 S.E.2d 410 (1996) (holding that “[a] litigant may not silently
acquiesce to an alleged error . . . and then raise that error as a reason for reversal on appeal”). As
a result, we find that petitioners did not preserve this issue for appeal and we decline to consider
this assignment of error.
Next, we address petitioners’ assignment of error that the circuit court erred in granting
WWMLC’s motion for summary judgment. In its motion, WWMLC argued that petitioners failed
to present any evidence that WWMLC breached a duty owed to petitioners or that WWMLC was
the actual or proximate cause of petitioners’ alleged damages. WWMLC further argued that
petitioners’ own expert testified that WWMLC’s ownership of the property above the Landville
CSX dismissal order, that order was not attached to the notice of appeal and is, therefore, not
properly before this Court.
5
area did not violate any duty owed to petitioners and that WWMLC committed no act or omission
that actually or proximately caused petitioners’ alleged damages. WWMLC also argued that
petitioners, as private individuals, cannot maintain a public nuisance claim against WWMLC and
that petitioners failed to produce evidence sufficient to establish the remaining claims alleged
against WWMLC in the complaint. Petitioners untimely submitted to the circuit court and
WWMLC’s counsel a two-page unsigned response.9 Though petitioners’ response relied generally
(and exclusively) on the report of their expert witness, petitioners failed to attach either the report
or any other affidavit, exhibit, or document in support of their response.
In its order granting WWMLC’s motion, the circuit court found that petitioners’ response
failed to comply with the requirements of West Virginia Rule of Civil Procedure 56(e), that
petitioners failed to present any evidence or legal arguments to support their claims against
WWMLC “other than private nuisance,” and that WWMLC is entitled to judgment as a matter of
law on all the other claims alleged. The circuit court also granted the motion to exclude the
testimony of petitioners’ expert witness. The court then considered the private nuisance claim and
found that petitioners failed to provide any other evidence of record to support such claim. The
court therefore granted WWMLC’s motion for summary judgment on that issue as well.
On appeal, petitioners argue that factual disputes exist as to their claims against WWMLC
and, therefore, summary judgment was improperly granted. They contend simply that, in addition
to the testimony of their now-excluded expert witness, WWMLC’s own expert criticized
WWMLC’s run-off plan, stating that “[i]n general, it is a poor design for upstream culverts to have
significantly greater capacity than a downstream culvert. In general, this will result in increased
flooding of downstream properties in storms.” According to petitioners, even if the testimony of
their expert was properly excluded, the testimony of WWMLC’s expert supports their claims. We
find no error.
This Court has cautioned consistently that
“[i]f the moving party makes a properly supported motion for summary
judgment and can show by affirmative evidence that there is no genuine issue of a
material fact, the burden of production shifts to the non-moving party who must
either (1) rehabilitate the evidence attacked by the moving party, (2) produce
additional evidence showing the existence of a genuine issue for trial, or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f)
of the West Virginia Rules of Civil Procedure.” Syllabus Point 3, Williams v.
Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).
Syl. Pt. 3, Miller v. City Hosp., Inc., 197 W. Va. 403, 475 S.E.2d 495 (1996). See also Syl. Pt. 3,
Jividen v. Law, 194 W. Va. 705, 461 S.E.2d 451 (1995). Furthermore,
“[w]hen a motion for summary judgment is mature for consideration and properly
is documented with such clarity as to leave no room for controversy, the nonmoving
9
The docket sheet does not indicate that petitioners’ response to WWMLC’s motion was
filed with the circuit court.
6
party must take the initiative and by affirmative evidence demonstrate that
a genuine issue of fact exists. Otherwise, Rule 56(e) empowers a circuit court to
grant the pretrial motion.
Williams, 194 W. Va. at 58, 459 S.E.2d at 335. Finally, we have instructed that the nonmoving
party must
point[] to specific facts demonstrating a “trialworthy” issue. To meet this burden,
the nonmovant must identify specific facts in the record and articulate the precise
manner in which that evidence supports its claims. As to material facts on which
the nonmovant will bear the burden at trial, the nonmovant must come forward with
evidence which will be sufficient to enable it to survive a motion for directed
verdict at trial. If the nonmoving party fails to meet this burden, the motion for
summary judgment must be granted.
Powderidge Unit Owners Ass’n v. Highland Props., Ltd., 196 W. Va. 692, 699, 474 S.E.2d 872,
879 (1996).
In this case, petitioners did not file an appropriate response to WWMLC’s summary
judgment motion nor did they adhere to the requirements of Rule 56 in that they failed to
rehabilitate the evidence attacked by WWMLC, failed to produce additional evidence showing the
existence of a genuine issue for trial, and failed to submit an affidavit explaining the necessity of
further discovery. See Miller, 197 W. Va. at 405, 475 S.E.2d at 497, syl. pt. 3. Petitioners’ argument
on appeal is equally deficient as it makes no legitimate attempt to show that it offered significant
probative evidence from which a jury could return a verdict in its favor and that summary judgment
was improperly granted. See Painter, 192 W. Va. at 193, 451 S.E.2d at 759. We, therefore,
conclude that the circuit court did not err in granting summary judgment in favor of WWMLC.
Petitioners next argue that the circuit court erred in granting summary judgment in favor
of Skidrow. In support of its motion for summary judgment, Skidrow argued that the timbering
project it conducted in the Landville area concluded approximately twenty months before the
flooding occurred on petitioners’ property; that documentation submitted in support of its motion
showed that water run-off plans were in place and approved by the West Virginia Division of
Forestry; that documented inspections of its operation by the Division of Forestry found Skidrow
to be in compliance with the agency’s Best Management Practices, including those related to water
run-off; and that petitioners’ expert admitted that, if the Division of Forestry approved Skidrow’s
operation at Landville, then Skidrow had presented a sufficient water run-off plan for the project.
In their untimely response to Skidrow’s motion, petitioners withdrew all of their claims
against Skidrow except those alleging negligence. Petitioners argued that, based upon the
testimony of their expert witness, there are disputed facts as to whether Skidrow deviated from the
Division of Forestry’s Best Management Practices and was, therefore, negligent in its timbering
operations that allegedly caused petitioners’ harm.
The circuit court concluded that the timbering operations Skidrow conducted in the
Landville area concluded approximately twenty months before the flooding occurred on
petitioners’ property and that that the project was “found by the West Virginia Division of Forestry
7
to be in compliance with applicable state laws and regulations with respect to its planning,
operations and shut down.” According to the circuit court, petitioners’ response to Skidrow’s
summary judgment motion “did not produce one piece of evidence which complied with Rule 56
. . . for rebutting the properly documented motion of” Skidrow and that petitioners failed to rebut
Skidrow’s evidence that it “had not violated any applicable law or regulation from which it could
be found that Skidrow . . . was in any way negligent in its operations.” The court further concluded
that petitioners “failed to present . . . any evidence that . . . Skidrow . . . breached any duty to
[petitioners] such that [petitioners] could sustain any claim for negligence against . . . Skidrow . .
. .”
On appeal, petitioners argue simply that, in addition to the testimony of their now-excluded
expert witness, “WWMLC’s expert claims that Skidrow’s timbering and its own clients lack o[f]
a run[-]off plan let water flow at a greater level than the culverts could handle” and that, even if
the testimony of Dr. Simonton was properly excluded, the testimony of WWMLC’s expert
supports a finding of “negligence on the part of all defendants.” We find no error.
Though petitioners generally contend that disputed factual issues exist as to their
negligence claim against Skidrow and that summary judgment was improperly granted, they fail
to address how the circuit court erred in concluding that petitioners failed to prove the essential
elements of such a claim. As we held in Syllabus Point 2 of West Virginia Department of Health
& Human Resources Employees Federal Credit Union v. Tennant, 215 W. Va. 387, 599 S.E.2d
810 (2004),
“[a]n appellant must carry the burden of showing error in the judgment of
which he complains. This Court will not reverse the judgment of a trial court unless
error affirmatively appears from the record. Error will not be presumed, all
presumptions being in favor of the correctness of the judgment.” Syllabus Point
5, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).
We conclude, therefore, that the circuit court did not err in granting summary judgment in
favor of Skidrow.
Finally, petitioner argues that the circuit court erred in granting CSX’s motion for summary
judgment. Upon careful review of the circuit court’s order, we conclude that it is devoid of factual
findings that would allow for meaningful appellate review. At the summary judgment stage and in
the present appeal, Petitioners and CSX each reference evidence of record that they claim support
their respective positions, none of which was included in the circuit court’s summary judgment
order. Instead, the court generally referenced “the testimony and other evidence,” found “that there
is no evidence in the record relating to the negligent discarding of debris [by CSX] that [is] not
related to the normal construction, maintenance, and operation of tracks and facilities as
contemplated by the ICCTA[,]” and concluded that petitioners “failed to make a sufficient showing
in opposition to [CSX]’s motion that they have a claim that is not pre-empted by the ICCTA.” This
Court has instructed that “[a]lthough our standard of review for summary judgment remains de
novo, a circuit court’s order granting summary judgment must set out factual findings sufficient to
permit meaningful appellate review. Findings of fact, by necessity, include those facts which the
circuit court finds relevant, determinative of the issues and undisputed.” Syl. Pt. 3, Fayette Cty.
Nat’l Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997), overruled on other grounds, Sostaric
8
v. Marshall, 234 W. Va. 449, 766 S.E.2d 396 (2014). See Hively v. Merrifield, 212 W. Va. 804,
808, 575 S.E.2d 414, 418 (2002) (“This Court is unable to perform its function unless the circuit
court’s order contains an adequate factual basis for its ultimate conclusion. Said another way,
before this Court can review the circuit court’s reasons for dismissing [the plaintiff’s] claims
against [the defendant], we must know what those reasons are.”); Ayersman v. West Virginia Div.
of Envtl Prot., 208 W. Va. 544, 546, 542 S.E.2d 58, 60 (2000) (“[A] summary judgment order must
set forth findings substantial enough to allow this Court to make an informed judgment on the
propriety of the lower court’s actions.”). Because the circuit court failed to include sufficient
findings and conclusions that would permit meaningful review of its decision by this Court, we
conclude that its summary judgment order in favor of CSX must be reversed and the case remanded
for entry of an appropriate order.
For the foregoing reasons, we affirm the circuit court’s orders granting summary judgment
in favor of WWMLC and Skidrow, and reverse and remand the summary judgment order in favor
of CSX for entry of an order consistent with this memorandum decision.10
Affirmed, in part, reversed, in part,
and remanded, with directions.
ISSUED: September 9, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
10
While petitioners also assign as error the circuit court’s refusal to grant petitioners’
motion to continue the proceedings based upon their attorney’s three-month suspension from the
practice of law, they fail to include any argument in their brief on this issue. We thus consider this
assignment of error to be waived. “Assignments of error that are not argued in
the briefs on appeal may be deemed by this Court to be waived.” Syl. Pt. 6, Addair v. Bryant, 168
W. Va. 306, 284 S.E.2d 374 (1981).
9