Update on Trump’s Coup: Do Not Think That This Is Guaranteed to End Well

NEIL H. BUCHANAN

UF Levin College of Law professor Neil H. Buchanan explains why “being patient with Trump” is a recipe for disaster, why there are still reasons to be guardedly optimistic, and why this all could still end very badly. Buchanan argues that the present situation is not guaranteed end badly, but he cautions that a Trump coup is eminently possible.

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Frazier v. McCabe

Docket: 19-0484

Opinion Date: November 12, 2020

Judge: Hutchison

Areas of Law: Constitutional Law, Government & Administrative Law

The Supreme Court reversed the order of the circuit court that ordered the West Virginia Division of Motor Vehicles (DMV) to grant the application for a motor vehicle salesperson license submitted by Timothy McCabe, holding that W. Va. Code 17A-6E-4(c)(5) is rationally related to the State's legitimate interest in preventing fraudulent activity in the motor vehicle industry and is not arbitrary or discriminatory. McCabe was denied a permanent motor vehicle salesperson license pursuant to section 17A-6E-4(c)(5), which prohibits the issuance of a motor vehicle salesperson license to an applicant previously convicted of a felony involving financial matters or the motor vehicle industry. The circuit court ordered that McCabe's application for a motor vehicle salesperson license be granted, concluding that the statute cannot lawfully be applied to applicants who were convicted of felonies prior to the enactment of the statute, that Defendant was denied due process, and that the statute is both constitutionally overbroad and overly narrow. The Supreme Court reversed, holding (1) section 17A-6E-4(c)(5) is a regulatory statute that does not violate the prohibition against ex post facto laws; (2) Defendant was afforded his procedural due process rights; and (3) the statute is neither overly broad nor overly narrow.

EQT Production Co. v. Antero Resources Corp.

Docket: 19-0572

Opinion Date: November 12, 2020

Judge: Margaret L. Workman

Areas of Law: Contracts, Energy, Oil & Gas Law, Real Estate & Property Law

The Supreme Court affirmed the circuit court's order granting Antero Resources Corporation partial summary judgment on its claim for declaratory judgment, holding that the court did not err in concluding that the Antero top lease took priority over the EQT Production Company base lease covering the same property. Larry and Linda Lemasters, who owned the oil and gas underlying a tract of land, entered into an oil and gas lease (the base lease) with an LLC that later assigned the lease to EQT. The Lemasters subsequently entered into an oil and gas lease with Antero (the top lease). The lease was made effective immediately upon expiration of the primary term of the base lease. The Lemasters and EQT (together, Defendants) subsequently entered into a base lease amendment agreeing to extend the primary term of the base lease. Antero filed a complaint against Defendants asserting claims for, inter alia, breach of contract and declaratory judgment. The circuit court awarded summary judgment for Antero on its declaratory judgment claim, determining that the base lease and its amendment were subject to the Antero top lease. The Supreme Court affirmed, holding that the court did not err in declaring that the top lease was the valid and existing oil and gas lease covering the subject property.

McElroy Coal Co. v. Dobbs

Dockets: 18-0134, 18-0135

Opinion Date: November 12, 2020

Judge: Armstead

Areas of Law: Contracts, Real Estate & Property Law

The Supreme Court affirmed the circuit court's grant of partial summary judgment finding that Gary Dobbs retained his right to purchase pasture land under a 1976 option agreement and that Terry and Catherine Dobbs triggered that right to purchase when they signed a 2007 option agreement, holding that the circuit court did not err. After Lyle Hobbs died, the land he owned passed to his wife and two sons, Terry and Gary. The trio conveyed a small parcel to the sons for a slaughterhouse. The remaining land, including a pasture, was conveyed to Terry and his wife, Catherine. Gary reserved the right to buy back the pasture land if Terry died or if Terry and Catherine decided to sell or assign the pasture land. Gary subsequently purchased the slaughterhouse property at auction. Decades later, Terry and Catherine entered into an option agreement with McElroy Coal Company to either sell the pasture land or provide McElroy Coal a waiver of liability for the company's mining operations. McElroy Coal chose a waiver and paid Terry and Catherine. Thereafter, Gary sued McElroy Coal and Terry and Catherine, alleging that they breached the 1976 option agreement. The circuit court granted summary judgment for Gary. The Supreme Court affirmed, holding that the circuit court did not err.

In re B.A.

Docket: 19-0921

Opinion Date: November 12, 2020

Judge: Walker

Areas of Law: Family Law

The Supreme Court reversed the order of the circuit court removing the child B.A. from the custody of Petitioners, foster parents, holding that the circuit court properly considered Petitioners' finances but that remand was required for a full analysis of the facts within the framework of the sibling preference contained in W. Va. Code 49-4-111(e) and the holding in In re Carol B., 550 S.E.2d 636 (W. Va. 2001). Petitioners had already adopted B.A.'s older sibling when B.A. was placed in their foster care. The guardian ad litem appointed to represent B.A. later discovered a number of liens and judgments against Petitioners, as well as more than $46,000 in unpaid child support. The guardian recommended that B.A. be removed from Petitioners' custody due to those issues. The circuit court directed that B.A. be removed from Petitioners' custody, finding that Petitioners would not meet the prerequisites to adopt the child under W. Va. Code 48-22-701(d). The Supreme Court reversed, holding that the circuit court erred in its apparent failure to place any weight on Petitioners' adoption of B.A.'s sibling and that Petitioners' home was the only home B.A. had ever known. The Court remanded the case for the circuit court to perform a best interests analysis making detailed consideration of the sibling preference.

Motorists Mutual Insurance Co. v. Zukoff

Docket: 19-0711

Opinion Date: November 12, 2020

Judge: Armstead

Areas of Law: Insurance Law

The Supreme Court reversed the circuit court's order granting summary judgment for Respondents on their declaratory judgment action against Petitioner, their insurer, to determine the rights and responsibilities of the parties under the insurance policy, holding that an exclusion in the policy was applicable so that the policy did not cover Respondents' loss. The building housing Respondents' business was inundated with sewage, causing damage. Respondents were insured by Petitioner under a general commercial liability policy. Petitioner denied coverage for the loss as falling under an exclusion for "water that backs up or overflows from a sewer, drain or sump." Respondents brought a declaratory judgment action to determine the rights of the parties under the insurance contract. The trial court found that the policy exclusion was inapplicable. The Supreme Court reversed, holding that the circuit court erred when it found the exclusion to be inapplicable.