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SER Bell Atlantic-WV v. Ranson, Judge

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1997 Term
No. 23942
STATE OF WEST VIRGINIA EX REL.
BELL ATLANTIC-WEST VIRGINIA, INC.,
A WEST VIRGINIA CORPORATION, AND
BELL ATLANTIC CORPORATION,
A DELAWARE CORPORATION,
Petitioners

v.
HONORABLE LYNE RANSON, JUDGE OF THE CIRCUIT COURT OF KANAWHA COUNTY;
E. KEITH MORGAN, MICHAEL T. SWORD,
DANIEL P. O'CONNOR, JEAN SANSON,
DBA C.J.'S AUTO SALES; AND
DORIS J. GRALEY, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Respondents

Petition for Writ of Prohibition
WRIT DENIED
Submitted: March 25, 1997 Filed: July 16, 1997
Gerard R. Stowers Geoffrey A. Haddad Bowles Rice McDavid Graff & Love Charleston, West Virginia David B. Frost Joseph J. Starsick, Jr. Charleston, West Virginia Attorneys for the Petitioners
Marvin W. Masters Anthony J. Majestro Richard A. Monahan Masters & Taylor Charleston, West Virginia Attorneys for E. Keith Morgan, Michael T. Sword, Daniel P. O'Connor, Jean Sanson and Doris J. Graley
Steven Hamula Charleston, West Virginia Attorney for Amicus Curiae Public Service Commission of West Virginia
JUSTICE McHUGH delivered the Opinion of the Court.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion. JUSTICE STARCHER concurs and reserves the right to file a concurring opinion. SYLLABUS BY THE COURT
1.
Where an administrative agency and the courts have concurrent jurisdiction of an issue which requires the agency's special expertise and which extends beyond the conventional experience of judges, the doctrine of primary jurisdiction applies. In such a case, the court should refrain from exercising jurisdiction until after the agency has resolved the issue. The court's decision whether to apply the primary jurisdiction doctrine is reviewed on appeal under an abuse of discretion standard.

2.
In determining whether to apply the primary jurisdiction doctrine, courts should consider factors such as whether the question at issue is within the conventional experience of judges; whether the question at issue lies peculiarly within the agency's discretion or requires the exercise of agency expertise; whether there exists a danger of inconsistent

rulings; and whether a prior application to the agency has been made.

3.
"A court must use a two-step approach when analyzing whether personal jurisdiction exists over a foreign corporation or other nonresident. The first step involves determining whether the defendant's actions satisfy our personal jurisdiction statutes set forth in W.Va. Code, 31-1-15 [1984] and W.Va. Code, 56-3-33 [1984]. The second step involves determining whether the defendant's contacts with the forum state satisfy federal due process." Syl. pt. 5, Abbott v. Owens-Corning Fiberglas Corp., 191 W. Va. 198, 444 S.E.2d 285 (1994).

4.
When a defendant files a motion to dismiss for lack of personal jurisdiction under W. Va. R. Civ. P. 12(b)(2), the circuit court may rule on the motion upon the pleadings, affidavits and other documentary evidence or the court may permit discovery to aid in its decision. At this stage, the party asserting jurisdiction need only make a prima facie showing of personal jurisdiction in order to survive the motion to dismiss. In determining whether a party has made a prima facie showing of personal jurisdiction, the court must view the allegations in the light most favorable to such party, drawing all inferences in favor of jurisdiction. If, however, the court conducts a pretrial evidentiary hearing on the motion, or if the personal jurisdiction issue is litigated at trial, the party asserting jurisdiction must prove jurisdiction by a preponderance of the evidence.

5.
"A parent-subsidiary relationship between corporations, one of which is 'doing business' in West Virginia, does not without the showing of additional factors subject the nonresident corporation to this state's jurisdiction. However, if the parent and its subsidiary operate as one entity, their formal separate corporate structures will not prevent the assertion of jurisdiction over the non-resident corporation. The extent of control exercised by the non-resident corporation over the corporation doing business in this state determines whether the non-resident corporation is subject to this state's jurisdiction." Syl. pt. 2, Norfolk Southern Ry. Co. v. Maynard, 190 W. Va. 113, 437 S.E.2d 277 (1993).

6.
"'"The standard of jurisdictional due process is that a foreign corporation must have such minimum contacts with the state of the forum that the maintenance of an action in the forum does not offend traditional notions of fair play and substantial justice." Syllabus Point 1, Hodge v. Sands Manufacturing Company, 151 W.Va. 133, 150 S.E.2d 793 (1966).' Syllabus Point 1, Hill by Hill v. Showa Denko, K.K., 188 W.Va. 654, 425 S.E.2d 609 (1992), cert. denied,


[508] U.S. [908], 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993)." Syl. pt. 1, Norfolk Southern Ry. Co. v. Maynard, 190 W. Va. 113, 437 S.E.2d 277 (1993).
7. "'A writ of prohibition will lie where the trial court does not have jurisdiction or, having jurisdiction, exceeds its legitimate powers.' Syllabus Point 3, State ex rel. McCarthey v. Nuzum, 161 W. Va. 740, 248 S.E.2d 318 (1978)." Syl. pt. 4, Pries v. Watt, 186 W. Va. 49, 410 S.E.2d 285 (1991).
McHugh, Justice:
Petitioners Bell Atlantic-West Virginia and Bell Atlantic Corporation invoke this Court's original jurisdiction pursuant to W. Va. Const. art. VIII,

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