Rules of Appellate Procedure

Part III. Appeals

Table of Contents Full Table of Contents

Appeals from circuit courts, administrative agencies, the Health Care Authority, and the Intermediate Court of Appeals
Record on appeal
Appendix record
Alternative method—designated record
Transcripts
Briefs
Abuse & neglect appeals
Workers' compensation appeals
Family court appeals
Public service commission appeals
Human rights commission appeals

Appeals from circuit courts, administrative agencies, the Health Care Authority, and the Intermediate Court of Appeals

Applicability. This rule governs all appeals from an appealable order of a circuit court, a final judgment of an administrative agency, a final order of the Health Care Authority in certificate of need review proceedings, a final decision of the Intermediate Court, or any other appealable judgment as set forth in West Virginia Code § 58-5-1, except: (1) appeals from orders in abuse and neglect proceedings under West Virginia Code § 49-4-601, et seq., which are governed by Rule 11; (2) appeals in workers' compensation proceedings under West Virginia Code §23-5-1 et seq., which are governed by Rule 12; (3) appeals from final family court orders to the Intermediate Court or the Supreme Court, which are governed by Rule 13; (4) appeals from the Public Service Commission which are governed by Rule 14; and (5) certified questions which are governed by Rule 17.
Docketing the appeal. Within thirty days of entry of the judgment being appealed, the party appealing shall file the notice of appeal, including attachments required in the notice of appeal form contained in Appendix A of these Rules. The notice of appeal, including attachments, shall be filed in the Office of the Clerk as required by Rule 38. The petitioner must comply with Rule 38. In addition to serving the notice of appeal in accordance with Rule 37, the party appealing a final order shall serve the notice of appeal, including attachments, on all parties to the action, on the clerk of the circuit court from which the appeal is taken—which shall be made a part of the record in the circuit court—and on each court reporter from whom a transcript is requested.
Parties to the appeal. All parties to the proceeding in the tribunal from which the appeal is taken shall be deemed parties in the Intermediate Court or the Supreme Court, unless the appealing party shall indicate on the notice of appeal that one or more of the parties below—who has been provided a copy of the notice of appeal—has no interest in the outcome of the matter. A party mistakenly designated as no longer interested may remain a party in this Court by notifying the Clerk of Court, with notice given to the other parties, that the party has an interest in the appeal. Such notice shall be filed with the Clerk within twenty days of the filing of the notice of appeal.
Scheduling order. As soon as practicable after the proper filing of the notice of appeal, the Intermediate Court or the Supreme Court will issue a scheduling order. As appropriate to the circumstances, the scheduling order will contain the dates on which the petitioner's brief, the response brief, the reply brief, and the designated record or appendix shall be filed; will set forth the date for the list required in the absence of an agreement on the contents of the record under Rule 7(e) of these Rules; will set forth whether a transcript will be prepared, the extent of any transcript, and the date the transcript is due; will set forth deadlines for filing motions; and may set forth such other matters as deemed beneficial or necessary. The scheduling order will set forth the official caption of the case on appeal that should be used on the cover page of all documents filed with the Intermediate Court or the Supreme Court.
Failure to comply with scheduling order. If a party fails to comply with a scheduling order, the Intermediate Court or the Supreme Court may impose sanctions, or dismiss the appeal, or both.
Perfecting the appeal—timing. Unless otherwise provided by law, an appeal must be perfected within four months of the date the judgment being appealed was entered. Upon motion filed on or before the deadline for perfecting an appeal, the Intermediate Court or the Supreme Court may grant leave to the petitioner to perfect an appeal where a notice of appeal has not been filed and a scheduling order has not been entered. Such relief will only be granted in extraordinary circumstances, and if the motion is granted, the Intermediate Court or the Supreme Court may, in their discretion, deny oral argument or impose other sanctions for failure to comply with the Rules.
Perfecting the appeal—method. An appeal is perfected by timely and properly filing, with the Clerk: (1) the petitioner's brief prepared in accordance with Rule 10 and (2) the appendix record prepared in accordance with Rule 7, unless the Court has specifically provided by order that an appendix record is not required. Failure by the petitioner to perfect an appeal will result in the case being dismissed from the docket.
Consideration of the appeal. After the response brief or summary response has been filed in accordance with Rule 10, and any reply brief deemed necessary has been filed (or the time for filing a reply has expired), the appeal will be deemed to be mature, and the Intermediate Court or the Supreme Court will fully consider the written arguments of all parties to the appeal. Thereafter, the Intermediate Court or the Supreme Court will: (1) decide the case on the merits without oral argument; (2) set the case for oral argument and then decide the case on the merits; or (3) issue an appropriate order after considering any written and oral arguments made by the parties.
Extensions. A party may file a motion in accordance with Rule 39 of these Rules for an extension of time to file a notice of appeal to perfect an appeal.

Notices of Appeal. The Intermediate Court or the Supreme Court may extend the time period for filing a notice of appeal to that court for good cause shown.
Time to perfect appeal. Extensions of the time to perfect an appeal may be granted by the circuit court from which an appeal is taken or by the Intermediate Court or Supreme Court, whichever appellate court has appellate jurisdiction. An extension may be granted for good causes shown, by order entered of record, for a period not to exceed a total extension of two months, if a complete notice of appeal was timely and properly filed by the party seeking the appeal. If a motion for leave to extend the time for perfecting an appeal is filed with the circuit court, a copy of the motion must be filed with the Clerk, and the order of the circuit court ruling on the motion must also be provided to the Clerk. A motion that is file with the Intermediate Court or the Supreme Court to extend the time to perfect an appeal must comply with Rule 29 and must state with particularity the reasons why an extension is necessary. In order to permit adequate time to perfect the appeal following the completion of the transcripts, the Intermediate Court or the Supreme Court may, on their own motion, extend the time period for appeal in a scheduling order.

Record on appeal

Contents of the record. The record on appeal consists of the documents and exhibits filed in the proceedings in the lower tribunal, the official transcript or recording of proceedings, if any, and the docket entries of the lower tribunal. The record in original jurisdiction proceedings filed under Rule 16 of these Rules consists of documents and exhibits, transcripts or recordings, or other items necessary for the Supreme Court to properly consider the issues presented.
Scope of the record on appeal. Parties on appeal are discouraged from including the entire record of the case in the lower tribunal in an appendix record or a designated record. The record on appeal should be selectively abridged by the parties in order to permit the Intermediate Court or the Supreme Court to easily refer to relevant parts of the record and to save the parties the expense of reproducing the entire record. The Intermediate Court or the Supreme Court may consider portions of the record other than those provided by the parties. Citations to portions of the record not included in the appendix record on appeal are greatly disfavored. Anything not filed with the lower tribunal shall not be included in the record on appeal unless the Intermediate Court or the Supreme Court grants a motion for leave to supplement the record on appeal for good cause shown. No appendix record or designated record submitted to the Supreme Court on appeal from the Intermediate Court may contain anything not included in the appendix record or designated record submitted before the Intermediate Court unless the Supreme Court grants a motion under Rule 7(g) for leave to supplement the appendix record.
Responsibility to provide the record on appeal. Unless otherwise provided by statute or rule, the record on appeal is not automatically transmitted to the Intermediate Court or the Supreme Court. All parties to the case are responsible for determining the contents of the appendix, and the petitioner is responsible for preparing and filing the appendix as set forth in Rule 7. If a designated record is permitted, all parties to the case are responsible for determining the contents of the designated record, and the circuit clerk or other Lower Tribunal is responsible for preparing and transmitting the record as set forth in Rule 8.
Method of providing the record. An appendix is required unless the Intermediate Court or the Supreme Court grants permission by order to proceed on a designated record. If a party believes that the appendix method would be impractical or inadequate for appellate review, the party shall file a motion with the Intermediate Court or the Supreme Court on or before the date established for such motions in the scheduling order, requesting an order directing the circuit clerk to transmit designated papers or exhibits to the Intermediate Court or the Supreme Court. The motion shall designate the papers and exhibits in question, and shall show good cause why providing a copy in an appendix would be impractical or inadequate for appellate review. If the motion to proceed on a designated record is granted, in whole or in part, the circuit clerk shall transmit the designated record as set forth in Rule 8.
Correction of errors. Any omission, misstatement, or error in the record, either clerical or otherwise, may be corrected at any time by stipulation filed with the Intermediate Court or the Supreme Court. The Intermediate Court or the Supreme Court, upon motion of a party or its own motion, may direct that an omission, misstatement, or error be corrected, and, if necessary, that a supplemental record be provided or transmitted.
Sanctions. The Intermediate Court or the Supreme Court, on its own motion or on motion of a party, may impose sanctions against attorneys who unreasonably and vexatiously increase the costs of litigation through the inclusion of unnecessary material in the appendix or designated record. Attorneys shall receive reasonable notice and an opportunity to respond before the imposition of any sanctions. A party's motion for imposition of sanctions will be considered only if filed within fourteen days after the issuance of the opinion or memorandum decision and only if counsel for the moving party previously objected to including the allegedly unnecessary material in writing to opposing counsel within ten days of receiving the list of materials required by Rule 7(e) or 8(c).

Appendix record

Format. An appendix must contain accurate reproductions of the documents and exhibits submitted to the lower court, administrative agency, or other tribunal, and may be reproduced using any method that produces a permanent, legible image. A paper appendix permitted under Rule 38B must be on white paper measuring eight and one-half inches by eleven inches. Reproductions may be slightly reduced in size to accommodate the page numbers required by subparagraph (b), provided, however, that legibility of the appendix is not significantly impaired. To the extent practicable, reproduction on both sides of each page of paper appendices is encouraged. Paper appendices must be fastened on the left side in a manner that will keep all the pages securely together and permit the Court to easily disassemble for copying. Use of binding methods for paper appendices that result in bulky protrusions or sharp edges, such as three-ring binders or spiral binders, is prohibited. A paper appendix of excessive length must be divided into volumes not to exceed three inches in thickness. If a paper appendix is permitted under Rule 38B, in addition to the paper appendix, an electronic Portable Document Format (PDF) copy in no less than 150 dots per inch and no greater than 300 dots per inch (dpi) resolution is required. The electronic copy of the appendix shall be provided by electronic mail to: scawv.filing@courtswv.gov. An appendix of excessive length must be divided into volumes not to exceed 20 megabytes (MB) in size. If an appendix contains only one volume, then the name of the file transmitted to the Clerk’s Office must include: (1) the petitioner’s last name; (2) the term “Appx.”; and (3) the term “p.” followed by the page numbers. EX. Smith-Appx. p.1-10. If an appendix contains more than one volume, then the name of the file transmitted to the Clerk’s Office must include: (1) the petitioner’s last name; (2) the term “Appx.”; (3) the term “Vol.” followed by the volume number; and (4) the term “p.” followed by the page numbers within that volume. EX. Smith-Appx.Vol.1 p.1-200; Smith-Appx.Vol.2 p.201-399, etc.
Page numbering. Each page of an appendix must be clearly numbered in a sequential fashion so as to permit each page to be located by reference to a single page number. Page numbers must be legible and distinct from any other numbers that appear on the documents. If official transcripts are stand-alone volumes, and the transcripts contain assigned page numbers, additional sequential page numbering is not required.
General requirements. Any appendix filed by any party must contain the following sections, as described and in the order indicated.

The upper portion of the cover page of an appendix must contain the caption of the case, (noting in parentheses the case number of the lower court or agency), and the title and volume number of the appendix, if applicable. If the case is confidential, the upper portion of the cover page must prominently state: "Confidential Case." If the appendix contains confidential or sealed material or personal identifiers restricted by Rule 40, the appendix need not be redacted, but the upper portion of the cover page must prominently state: "Contains Confidential Materials." The lower portion of the cover page must contain the name, address, telephone number, e-mail address, and West Virginia Bar Identification Number of counsel, if the petitioner is represented by counsel.
Immediately following the cover page, an appendix must contain a certification page signed by counsel or unrepresented party. For an appeal, the certification page must certify that: (a) the contents of the appendix are true and accurate copies of items contained in the record of the lower tribunal; and (b) the petitioner has conferred in good faith with all parties to the appeal in order to determine the contents of the appendix. For an original jurisdiction proceeding, the certification page must certify that the appendix as a whole is sufficient to permit the Supreme Court to fairly consider the questions presented in the petition.
Immediately following the certification page, an appendix must contain a table of contents that lists and briefly describes each item included in the appendix by reference to its page number and volume number, if applicable.

Preparing the appendix on appeal. The petitioner shall prepare and file an appendix containing:

The judgment or order appealed from, and all other orders applicable to the assignments of error on appeal;
Pleadings, motions, and other filings, if their sufficiency, content, or form is in issue or material;
In a criminal case, the indictment or information and the sentencing order;
In an abuse and neglect case, a copy of the abuse and neglect petition;
Material excerpts from official transcripts of testimony or from documents in connection with a motion. Such excerpts must contain all the testimony or averments upon which the petitioner relies and upon which it may be reasonably assumed the respondent will rely. If transcript excerpts are misleading or unintelligible by reason of incompleteness or lack of surrounding context, the entire transcript must be provided;
Critical exhibits, including photographs and maps, to the extent practicable;
A complete docket sheet in the case obtained from the clerk of the lower tribunal;
Other parts of the record necessary for consideration of the appeal.

Determining the contents of the appendix. The parties are encouraged to agree on the contents of the appendix. In the absence of an agreement, the petitioner must, within the time period set forth in the scheduling order, serve on the respondent a list of the parts of the record that the petitioner intends to include in the appendix, along with a list of any issues intended to be presented that were not contained in the notice of appeal. The respondent may, within ten days after receiving the petitioner's list, serve on the petitioner a list of additional parts of the record it deems necessary for consideration of the appeal. The petitioner must include the respondent's listed parts of the record in the appendix unless the petitioner advises the respondent that all or some of the parts are unnecessary as set forth in the costs provisions of this Rule. The parties should not list unnecessary parts of the record for inclusion in the appendix.
Costs of the appendix on appeal. Unless the parties agree otherwise, the petitioner must pay the cost of the appendix. If the petitioner considers parts of the record designated by the respondent to be unnecessary, the petitioner may advise the respondent, who must then advance the cost of including those parts. The cost of the appendix is a taxable cost. If any party causes unnecessary parts of the record to be included in the appendix, the Intermediate Court or the Supreme Court may impose the cost of those parts on that party.
Supplemental appendix. A party may file a motion for leave to file a supplemental appendix that includes such matters from the record not previously submitted. The motion shall set forth good cause why the material was not previously included. If the respondent's brief contains cross-assignments of error, the respondent may file a supplemental appendix that does not contain materials duplicative to the appendix already filed in the case. A supplemental appendix must comply with the format, page numbering, and general requirements of this Rule.
Transcripts. If entire transcript volumes are included as part of an appendix, the volumes must comply with the format requirements in subsection (a) of this Rule and must contain a cover page as required by subdivision (c)(1) of this Rule. Pursuant to Rule 7(b), the page numbers of transcript volumes do not have to be re-numbered.

Alternative method—designated record

When permitted. The Intermediate Court or the Supreme Court may consider a case without an appendix record, or upon a partially designated record, when: (1) a scheduling order allows designation; or (2) an order allowing designation is entered by the court with appellate jurisdiction of the action, either by granting a motion to proceed on a designated record or its own motion.
Petitioner's designation. Within the time frame set forth by order, the petitioner shall file with the clerk of the circuit court or other lower tribunal an itemized designation of such pleadings, orders, exhibits, and transcripts to enable the Intermediate Court or the Supreme Court to decide the matters arising in the proceeding, along with the appropriate bond for costs as required by subsection (g).
Respondent's designation. Within the time frame set forth by order, the respondent shall file with the circuit clerk a designation of such additional parts of the record as considered necessary in view of the petitioner's designation.
Joint designation. The Intermediate Court or the Supreme Court may by order entered of record, require the parties to confer and submit a joint designation.
Form of designation. Designations shall be in such form as to guide the person assembling the record. Counsel may mark the docket sheet with appropriate notations. Asterisks or ellipses should be used to indicate omissions in testimony of witnesses or other parts of the record.
Assembling the designated record. The circuit clerk, or other lower tribunal before transmitting the designated record, shall arrange the designated documents, as nearly as possible, in chronological order of filing, number the pages as described in Rule 7(b), and prepare a table of contents as described in Rule 7(c)(3). Physical evidence or bulky items that have been designated by the parties may be omitted from the record transmitted, provided that the table of contents describes the omitted exhibits and makes a notation that the exhibits are available upon request. Original documents are not required to be transmitted unless expressly required by order.
Bond for Costs. Before the designated record is transmitted, the petitioner shall deposit with the clerk of the circuit court sufficient money, or a bond conditioned to pay the same, in a penalty and with sureties to be fixed and approved by such clerk, to pay: (1) the expenses of preparing and indexing the record; (2) fees for certifying necessary copies of orders; (3) costs of transmission and return of the record; and (4) costs of the making of the transcript. The clerk shall endorse on the record that such deposit has been made or such bond fixed.

Transcripts

When transcripts are necessary. In preparing the notice of appeal, the petitioner is responsible for making the initial determination as to whether a written transcript of a proceeding in the lower tribunal will assist in deciding the issues presented on appeal. Because the parties are encouraged to agree on the contents of the appendix pursuant to Rule 7(e), the petitioner is encouraged to confer with the other parties to the case as to whether transcripts are necessary.
Requesting transcripts—preliminary matters. Before a transcript of proceedings may be requested for purposes of an appeal, the requesting party must obtain—from each court reporter who will be involved in preparing any portion of the transcript—an estimate of the length of the transcript, and must make appropriate financial arrangements with each court reporter either by: (1) immediate payment in full or by another payment arrangement that is acceptable to the court reporter pursuant to subsection (e) of this Rule; or (2) filing, in appropriate cases, an affidavit of indigency or order appointing counsel in the circuit clerk's office, in which case payment for the transcript will be made by the Supreme Court.
Transcript requests by the petitioner. The petitioner's transcript request is made by filing a notice of appeal and appellate transcript request form as required by Rule 5 and in the format provided in Appendix A of these Rules. If a petitioner fails to properly request a transcript within the time specified, fails to make satisfactory financial arrangements with the court reporter, or fails to specify in adequate detail those proceedings to be transcribed, the Intermediate Court or the Supreme Court may deny motions for an extension of the appeal period or subject the appeal to dismissal by the Court for failure to perfect.
Transcript requests by the respondent. If the respondent, upon review of the petitioner's notice of appeal, is of the opinion that the transcripts listed by the petitioner, if any, are not adequate to permit fair consideration of the assignments of error presented, the respondent shall, within fourteen days after service of the notice of appeal, request that additional transcripts be prepared by completing and filing an appellate transcript request contained in Appendix A of these Rules. The respondent's transcript request shall be served upon opposing counsel, on each court reporter from whom a transcript is requested, and be filed with the Clerk. As appropriate to the circumstances, the Intermediate Court or the Supreme Court will issue an amended scheduling order. The respondent may provide a statement of costs to the Intermediate Court or the Supreme Court if transcripts produced under this subsection are included in a supplemental appendix under Rule 7.
Payment for transcripts. In cases where transcripts are not paid for by the Supreme Court, the court reporter may, for good cause shown by the requesting party, defer payment at the time the transcript is requested. If payment is deferred in whole or in part, the requesting party must make full payment upon receipt of the court reporter's invoice. If payment is not received by the court reporter within a reasonable amount of time, the Intermediate Court or the Supreme Court may deny motions for extension of the appeal period or dismiss the appeal for failure to perfect. When a transcript has been properly requested, but the appeal is later dismissed or withdrawn, the requesting party is nevertheless obligated to pay the court reporter for the cost of the transcript prepared prior to the court reporter's receipt of notification from the requesting party that the appeal has been dismissed or withdrawn. If a party has made an informal request for a transcript but fails to properly complete and file a notice of appeal containing the appropriate transcript request, the court reporter is not obligated to perform any work to complete the transcript unless otherwise provided by order.
Duties of the court reporter. Unless otherwise provided in a scheduling order or other order issued by the Intermediate Court or the Supreme Court, a completed transcript is due forty-five days from the court reporter's receipt of the appellate transcript request; provided, however, that transcripts in abuse and neglect appeals under Rule 11 are not prepared for purposes of appeal unless specifically approved in advance by the Supreme Court. The court reporter shall promptly notify the Deputy Clerk of any problem with the appellate transcript request or the financial arrangements. Upon completion of the transcript, the court reporter must promptly provide a copy to the requesting party, file the original transcript in the circuit clerk's office, and provide a completed certification—setting forth the date the transcript was filed—to the Clerk. Additional duties and responsibilities applicable to court reporters are set forth in the Official Manual for West Virginia Court Reporters.
Extensions of time to complete transcripts. The Clerk may grant an extension of time for the court reporter to complete a transcript. All requests for extensions of time must be specific and in writing.

Briefs

Format. In addition to the specific requirements in this Rule, all briefs and summary responses are required to: (1) comply with the general format requirements and page limitations set forth in Rule 38; and (2) avoid unnecessary use of personal identifiers as required by Rule 40(e).
Time for filing and method of filing. Unless otherwise provided, briefs are due within the time frame set forth in the scheduling order. Typically, the petitioner's brief must be filed four months from entry of the final order being appealed, the respondent's brief must be filed forty-five days after the petitioner's brief, and any reply brief deemed necessary must be filed twenty days after the respondent's brief. The number of copies and page limitations for briefs and summary responses are set forth in Rule 38. Briefs and summary responses are deemed filed when they are received in the Clerk's Office in proper form, not when mailed.
Petitioner's brief. The petitioner's brief shall contain the following sections in the order indicated, immediately following the cover page required by Rule 38(b).
1. Table of Contents: If the brief exceeds five pages it must include a table of contents, with page references to the sections of the brief and the argument headings. The table of contents does not count toward the page limit for briefs.
2. Table of Authorities: If the brief exceeds five pages it must include a table of authorities with an alphabetical list of cases, statutes, and other authorities cited, and references to the pages of the brief where they are cited. The table of authorities does not count toward the page limit for briefs.
3. Assignments of Error: The brief opens with a list of the assignments of error that are presented for review, expressed in terms and circumstances of the case but without unnecessary detail. The assignments of error need not be identical to those contained in the notice of appeal. The statement of the assignments of error will be deemed to include every subsidiary question fairly comprised therein. If the issue was not presented to the lower tribunal, the assignment of error must be phrased in such a fashion as to alert the Intermediate Court or the Supreme Court to the fact that plain error is asserted. In its discretion, the Intermediate Court or the Supreme Court may consider a plain error not among the assignments of error but evident from the record and otherwise within its jurisdiction to decide.
4. Statement of the Case: Supported by appropriate and specific references to the appendix or designated record, the statement of the case must contain a concise account of the procedural history of the case and a statement of the facts of the case that are relevant to the assignments of error.
5. Summary of Argument: The summary of argument should be a concise, accurate, and clear condensation of the argument made in the body of the brief, and need not contain extensive citation to legal authorities. The summary may not be a mere repetition of the headings under which the argument is arranged.
6. Statement Regarding Oral Argument and Decision: The brief must contain a statement as to whether oral argument is necessary pursuant to the criteria in Rule 18(a). If the party deems oral argument to be necessary, the party must indicate whether the case should be set for a Rule 19 argument or a Rule 20 argument, and why. If the party requests a Rule 19 argument, the party must state whether the case is appropriate for a memorandum decision. If the party requests that the case be set for oral argument and believes that the minimum time for argument set forth in Rule 19 or Rule 20 will not be sufficient, the party may request a specific amount of additional time for argument and explain why the party believes that good cause exists for granting additional time.
7. Argument: The brief must contain an argument clearly exhibiting the points of fact and law presented, the standard of review applicable, and citing the authorities relied on, under headings that correspond with the assignments of error. The argument must contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal. The Intermediate Court and the Supreme Court may disregard errors that are not adequately supported by specific references to the record on appeal.
8. Conclusion: The brief must end with a conclusion, specifying the relief the party seeks.
9. Certificate of Service: A certificate of service as required by Rule 37 must be attached to the end of the brief. The certificate of service does not need a page number and does not count toward the page limit for briefs.
10. The following requirements must be observed when counsel in a criminal, habeas corpus, or abuse and neglect case is directed by a client to file an appeal where counsel lacks a good faith belief that an appeal is reasonable and warranted under the circumstances:
  1. Counsel must engage in a candid discussion with the client regarding the merits of the appeal. If, after consultation with the client, the client insists on proceeding with the appeal, counsel must file a notice of appeal and perfect the appeal on the petitioner's behalf. The petitioner’s brief should raise any arguable points of error advanced by the client. Counsel need not espouse unsupportable contentions insisted on by the client, but should present a brief containing appropriate citations to the appendix and any case law that supports the assignments of error.
  2. In extraordinary circumstances, if counsel is ethically compelled to disassociate from the contentions presented in the brief, counsel must preface the brief with a statement that the brief is filed pursuant to Rule 10(c)(10)(b). Counsel should not inject disclaimers or argue against the client’s interests. If counsel is ethically compelled to disassociate from any assignments of error that the client wishes to raise on appeal, counsel must file a motion requesting leave for the client to file a pro se supplemental brief raising those assignments of error that the client wishes to raise but that counsel does not have a good faith belief are reasonable and warranted.
Respondent's brief. The respondent must file a brief in accordance with this subsection, or a summary response in accordance with subsection (e) of this Rule. The respondent's brief must conform to the requirements in subsection (c) of this Rule, except that no statement of the case need be made beyond what may be deemed necessary in correcting any inaccuracy or omission in the petitioner's brief, and except that the respondent need not specifically restate the assignments of error. Unless otherwise provided by the Intermediate Court or the Supreme Court, the argument section of the respondent's brief must specifically respond to each assignment of error, to the fullest extent possible. If the respondent's brief fails to respond to an assignment of error, the Intermediate Court or the Supreme Court will assume that the respondent agrees with the petitioner's view of the issue.
Summary response. Instead of a brief, the respondent may file a summary response. A summary response need not comply with all the requirements for a brief set forth in this rule but must contain an argument responsive to the assignments of error with appropriate citations to the record on appeal, clearly exhibiting the points of fact and law being presented and the authorities relied on; a conclusion, specifying the relief the party seeks; and a certificate of service as required by Rule 37. A party who files a summary response is deemed to have consented to the waiver of oral argument.
Cross-assignments of error. The respondent, if he is of the opinion that there is error in the record to his prejudice, may assign such error in a separate portion of his brief and set out authority and argument in support thereof in the manner provided in subsection (c) of this Rule. Such cross-assignment may be made notwithstanding the fact that the respondent did not perfect a separate appeal within the statutory period for taking an appeal. If the respondent's brief contains cross-assignments of error, the cover page of the brief must clearly so reflect. The petitioner may respond to the cross-assignment of errors in the reply brief.
Reply brief. The petitioner may file a reply brief, which must comply with such parts of this rule applicable to the respondent, but need not contain a summary of argument, if appropriately divided by topical headings. If a timely-filed respondent's brief asserts cross-assignments of error, the applicable page limitation for a reply brief set forth in Rule 38 is extended to forty pages, and the time for filing a reply brief is automatically extended, without need for further order, until thirty days after the date the respondent's brief containing cross-assignments of error was filed. Unless otherwise provided by order, in cases where more than one respondent's brief is filed, the petitioner is limited to filing only a single reply brief that consolidates the reply to each of the responses. In cases where more than one response brief is filed, the page limitation for the reply brief under Rule 38 is automatically extended to thirty pages, without need for further order.
Supplemental brief. The Intermediate Court or the Supreme Court may, on its own motion or upon motion of a party, direct that supplemental briefs be filed addressing a particular issue or circumstance. Unless otherwise provided, supplemental briefs need only comply with such parts of this rule applicable that are appropriate under the circumstances.
Notice of additional authorities. Whenever a party desires to present late authorities, newly enacted legislation, or other intervening matters that were not available in time to have been included in the party's brief, the party may briefly inform the Court by letter, with copy provided to opposing parties. If the Intermediate Court or the Supreme Court desires any further briefing or argument, it will so instruct by order.
Failure to file brief. The failure to file a brief in accordance with this rule may result in the Intermediate Court or the Supreme Court refusing to consider the case, denying oral argument to the derelict party, dismissing the case from the docket, or imposing such other sanctions deemed appropriate.

Abuse & neglect appeals

Applicability. This Rule governs all appeals from a circuit court final judgment in abuse and neglect cases under West Virginia Code § 49-4-601, et seq.
Docketing the appeal. Within thirty days of entry of the judgment being appealed, the petitioner shall file the notice of appeal and the attachments required in the notice of appeal form contained in Appendix A of these Rules. The notice of appeal shall be filed in the Office of the Clerk of the Supreme Court. In addition to serving the notice of appeal in accordance with Rule 37, the party appealing shall serve a copy of the notice of appeal, including attachments, on all parties to the action in circuit court, on the clerk of the circuit court from which the appeal is taken—which shall be made a part of the record in the circuit court—and on each court reporter from whom a transcript is requested. To the extent that a transcript of a particular proceeding is necessary for the Supreme Court to review a disputed evidentiary or testimonial issue, the petitioner must so indicate in the notice of appeal. Upon motion filed in accordance with Rule 39(b), the Supreme Court may extend the time period for filing a notice of appeal for good cause shown.
Parties to the appeal. All parties to the proceeding in the court from which the appeal is taken, including the guardians ad litem for the minor children, shall be deemed parties in the Supreme Court, unless the appealing party shall indicate on the notice of appeal that one or more of the parties below has no interest in the outcome of the matter. A party mistakenly designated as no longer interested may remain a party in the Supreme Court by notifying the Clerk, with notice given to the other parties, that they have an interest in the appeal, within twenty days of the filing of the notice of appeal.
Scheduling order. As soon as practicable after the proper filing of the notice of appeal, the Supreme Court will issue a scheduling order. As appropriate to the circumstances, the scheduling order will contain the dates on which the petitioner's brief, the response brief, the reply brief, and the designated record or appendix shall be filed; will set forth whether a transcript will be prepared, the extent of any transcript, and the date the transcript is due; will set forth deadlines for filing motions; and may set forth such other matters as deemed beneficial or necessary. The scheduling order will set forth the official caption of the case, which should be used on the cover page of all documents filed with the Supreme Court.
Failure to comply with scheduling order. If a party fails to comply with a scheduling order the Supreme Court may impose sanctions or dismiss the appeal, or both.
Perfecting the appeal—timing. Unless otherwise provided by law, an appeal in an abuse and neglect case must be perfected within sixty days of the date the judgment being appealed was entered in the office of the circuit clerk; provided, however, that the circuit court from which the appeal is taken or the Supreme Court may, for good cause shown, by order entered of record, extend such period, not to exceed a total extension of two months, if the notice of appeal was properly and timely filed by the party seeking the appeal. If a motion for leave to extend the time for perfecting an appeal is filed with the circuit court, a copy of the motion must be filed with the Clerk, and the order of the circuit court ruling on the motion must also be provided to the Clerk. A motion that is filed with this Court to extend time to perfect an appeal must comply with Rule 29 and must state with particularity the reasons why an extension is necessary. Upon motion filed on or before the deadline for perfecting an appeal, the Supreme Court may grant leave to the petitioner to perfect an appeal where a notice of appeal has not been filed and a scheduling order has not been entered. Such relief will be granted only in extraordinary circumstances, and if the motion is granted, the Supreme Court may, in its discretion, deny oral argument or impose other sanctions for failure to comply with the Rules.
Perfecting the appeal—method. An appeal is perfected by the timely and proper filing in the Office of the Clerk of: (1) the petitioner's brief prepared in accordance with Rule 10 and (2) the appendix record prepared in accordance with Rule 7, unless the Supreme Court has specifically provided that an appendix record is not required. Failure by the petitioner to perfect an appeal will result in the case being dismissed from the docket of the Supreme Court.
Responsibilities of guardian ad litem. Unless the guardian ad litem brings an appeal for a child as the petitioner, the guardian ad litem for any minor child involved in an abuse and neglect appeal must file a respondent's brief—or a summary response in an appropriate case—and if argument is held the guardian must appear and present argument unless otherwise specifically ordered by the Supreme Court.
Special requirements for briefs. In addition to the items required by Rule 10, the briefs filed by the parties (including the guardian ad litem) must contain a section immediately following the concise summary of argument required by Rule 10(c)(5), setting forth the current status of the minor children and any plans for permanent placement, and the current status of the parental rights of all the children's parents.
Update regarding the current status of the child. The parties shall provide a written statement of any change in the circumstances that were set forth in the briefs within one week of any oral argument scheduled by the Supreme Court or within such other time as may be specified by order.
Consideration of the appeal. After the response brief or summary response has been filed in accordance with Rule 10, and any reply brief deemed necessary has been filed (or the time for filing a reply has expired), the appeal will be deemed to be mature, and thereafter the Supreme Court will fully consider the written arguments of all parties to the appeal. Thereafter, the Supreme Court will: (1) decide the case on the merits without oral argument; or (2) set the case for oral argument and decide the case on the merits; or (3) issue an appropriate order after considering any written and oral arguments made by the parties.

Workers' compensation appeals

Applicability. This Rule governs all appeals from a final decision of the Workers' Compensation Board of Review pursuant to West Virginia Code § 23-5-15 to the Intermediate Court and all appeals in workers' compensation cases from the Intermediate Court to the Supreme Court, or as allowed by motion under West Virginia Code § 51-11-5.
Time for appeal. No appeal shall be presented from a decision of the Workers' Compensation Board of Review to the Intermediate Court that has been rendered more than thirty days before such appeal is filed with the Clerk. No appeal from a decision of the Intermediate Court shall be presented to the Supreme Court that has been rendered more than thirty days before such appeal is filed with the Clerk.
Perfecting the appeal. An appeal from a decision of the Workers' Compensation Board of Review to the Intermediate Court, or an appeal from the Intermediate Court to the Supreme Court is perfected upon the timely and proper filing of a docketing statement, petitioner's brief, and appendix in the Office of the Clerk.
Docketing statement. The petitioner must file the docketing statement with the attachments mentioned in the form contained in Appendix B of these Rules.
Petitioner's brief. The petitioner must file a brief in the same format as provided in Rule 10, and must comply with the page limitations set forth in Rule 38. If applicable, the petitioner's brief shall name the successor to the workers' compensation commission as a respondent in addition to the adverse party.
Appendix. The petitioner must file a separate appendix of documents relevant to the issues on appeal. The appendix shall accurately reflect the relevant documents submitted in the administrative proceedings and must include the decision of the Office of Judges, if applicable, and the Board of Review. The appendix must also include all relevant medical reports, psychological reports, vocational reports, transcripts, correspondence, orders, and other written material that is necessary for a fair consideration of the issues on appeal. In appeals to the Supreme Court the decision from the Intermediate Court must also be included.
Service. All documents filed in a workers' compensation appeal shall be served on all parties to the appeal or, if represented, upon their attorneys, and upon the successor to the Workers' Compensation Commission, in accordance with Rule 37.
Respondent's brief. Within thirty days of the petitioner's brief, the respondent may file a brief or summary response in the same format as provided in Rule 10, and must comply with the page limitations set forth in Rule 38. The respondent may file a separate appendix of additional documents relevant to the issues on appeal not contained in the petitioner's appendix. Cross-assignments of error are not permitted.
Reply brief. If the respondent files a brief or summary response, the petitioner may file a reply brief, which must comply with the page limitations set forth in Rule 38, within twenty days of the respondent's brief or summary response.
Consideration of the appeal. After the response brief or summary response has been filed, and any reply brief deemed necessary has been filed (or the time for filing a reply has expired), the appeal is deemed to be mature for full consideration by the Intermediate Court or the Supreme Court. Thereafter, the Intermediate Court or the Supreme Court will: (1) decide the case on the merits without oral argument; or (2) set the case for oral argument and decide the case on the merits; or (3) issue an appropriate order after considering any written and oral arguments made by the parties.
Decision. The Intermediate Court or the Supreme Court shall certify its decision upon the merits of the appeal to the Workers' Compensation Board of Review and, in an appropriate case, to the successor to the workers' compensation commission.

Family court appeals

Applicability. This rule governs direct appeals from a family court final order to the Intermediate Court and appeals from the Intermediate Court to the Supreme Court, as well as appeals to the Supreme Court pursuant to West Virginia Code §51-2A-15(a), and appeals transferred to the Supreme Court pursuant to West Virginia Code §51-2A-14(f).
Direct Appeals to the Supreme Court from family court. An appeal from a final order of a family court may not be filed in the Supreme Court unless, within fourteen days after entry of a family court final order, both of the parties file a notice of intent to appeal directly to the Supreme Court and waive their right to appeal to the Intermediate Court.
Appeals from order of the family court to the Intermediate Court.

Docketing an appeal. Within thirty days of entry of the order or judgment being appealed, the petitioner shall file the notice of appeal, including the required attachments, in the form contained in Appendix A of these Rules. The notice of appeal, including attachments, shall be filed in the Office of the Clerk as required by Rule 38. All parties to the proceeding below, including the guardians ad litem for the minor children, are deemed parties to the appeal. The notice of appeal shall be served on all parties to the appeal or, if represented, upon their attorneys, and a copy shall be filed with the circuit clerk.
Scheduling Order. As soon as practicable after the proper filing of the notice of appeal, a scheduling order will be issued. As appropriate to the circumstances, the scheduling order will contain the dates on which the petitioner's brief, the response brief, the reply brief, and the designated record or appendix shall be filed; will set forth whether a transcript will be prepared, the extent of any transcript, and the date the transcript is due; will set forth deadlines for filing motions; and may set forth such other matters as deemed beneficial or necessary. The scheduling order will set forth the official caption of the case, which should be used on the cover page of all documents filed with the Intermediate Court. If a party fails to comply with a scheduling order the Intermediate Court may impose sanctions or dismiss the appeal, or both.
Perfecting the appeal from family court to the Intermediate Court. An appeal from a decision of the family court to the Intermediate Court must be perfected within sixty days of entry of the judgment being appealed. An appeal is perfected by the timely and proper filing of the petitioner's brief and appendix record in the Office of the Clerk. The petitioner must file a brief in the same format as provided in Rule 10 and must comply with the page limitations set forth in Rule 38. The petitioner must file a separate appendix of documents relevant to the issues on appeal in accordance with Rule 7. The appendix shall contain the relevant documents submitted in the family court and must include the decision of the family court.
Respondent's brief in appeal to the Intermediate Court. Within fifteen days of the petitioner's brief, the respondent shall file a brief or summary response, together with any cross-assignment of error, in the same format as provided in Rule 10 and must comply with the page limitations set forth in Rule 38.
Reply brief in appeal to the Intermediate Court. If the respondent files a brief or summary response, or cross assignment of error, the petitioner may file a reply brief, which must comply with the page limitations set forth in Rule 38, within ten days of the respondent's brief or summary response.
Service. All documents shall be served on all parties to the appeal or, if represented, upon their attorneys.
Consideration of the appeal by the Intermediate Court. After the response brief or summary response has been filed, and any reply brief deemed necessary has been filed (or the time for filing a reply has expired), the appeal is deemed to be mature for full consideration by the Intermediate Court. Thereafter, the Intermediate Court will: (1) decide the case on the merits without oral argument; or (2) set the case for oral argument and decide the case on the merits; or (3) issue an appropriate order after considering any written and oral arguments made by the parties.

Appeals from the Intermediate Court to the Supreme Court in family court cases are governed by Rule 5 of the Rules of Appellate Procedure.

Public service commission appeals

Applicability. This Rule governs all appeals from a final decision of the Public Service Commission pursuant to West Virginia Code § 24-5-1.
Time for appeal. A party seeking review in the Supreme Court of a final order of the Public Service Commission must perfect the appeal within thirty days of entry of the final order of the Commission.
Perfecting the appeal. An appeal under subsection (a) is perfected upon the timely and proper filing of a petitioner's brief and appendix in the Office of the Clerk.
Petitioner's brief. The petitioner shall file a brief in substantially the same format as provided in Rule 10.
Appendix. The petitioner must file an appendix of documents that comply with the format, page numbering, and general requirements set forth in Rule 7. The appendix must include the relevant decisions or orders pertaining to the subject matter of the appeal, but need not contain evidence that will be provided with the Commission record.
Commission record. Within thirty days of receipt of notice that an appeal has been perfected, the Commission shall transmit to the Clerk the record of the proceedings had before it, including all the evidence.
Scheduling order. As soon as practicable after the appeal is perfected, the Supreme Court will issue a scheduling order. As appropriate to the circumstances, the scheduling order will set forth the date upon which a statement of reasons must be filed by the Commission, the date upon which any respondent's brief must be filed, and the date for oral argument.
Statement of reasons. Within the time period provided in the scheduling order, the Commission shall file a statement of reasons in the same format as the respondent's brief set forth in Rule 10.
Respondent's brief. Within the time period provided in the scheduling order, a party to the proceedings before the Commission against whom the appeal is taken must file a respondent's brief or summary response in the same format required for the respondent's brief set forth in Rule 10. Cross-assignments of error are not permitted.
Reply brief. Within the time period provided in the scheduling order, the petitioner may file a reply brief in the same format as set forth in Rule 10.
Oral argument. The date for oral argument under Rule 19 or Rule 20 will be set forth in the scheduling order. Unless otherwise provided by order, the petitioner, the Commission and any respondent who filed a brief shall be entitled to present argument.
Consideration of the appeal. At the conclusion of oral argument, the case will be submitted to the Supreme Court for its consideration. The Supreme Court may, in its discretion, decide the case on the briefs without further argument, issue a written decision on the merits, or issue an appropriate order.

Human rights commission appeals

Appeals from the Human Rights Commission are filed under Rule 5 of these Rules of Appellate Procedure.

West Virginia Judiciary

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Part III. Appeals

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Part III. Appeals