Preview:

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2010 Term __________ No. 35436 __________ TERRY LEE PHILLIPS, Petitioner Below, Appellant v. WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
JOSEPH CICCHIRILLO, COMMISSIONER,
Respondent Below, Appellee


FILED November 18, 2010
released at 10:00 a.m.
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

______________________________________________________ Appeal from the Circuit Court of Kanawha County
Honorable Louis H. Bloom, Judge
Civil Action No. 08-C-143
AFFIRMED _________________________________________________ Submitted: September 7, 2010 Filed: November 18, 2010

Steven M. Thorne Cook & Cook Madison, West Virginia Counsel for the Appellant

Darrell V. McGraw, Jr. Attorney General Janet E. James Assistant Attorney General Charleston, West Virginia Counsel for the Appellee

The Opinion of the Court was delivered PER CURIAM.

SYLLABUS BY THE COURT


1. "The standard of appellate review of a circuit court's refusal to grant relief through an extraordinary writ of prohibition is de novo." Syl. pt. 1, State ex rel. Callahan v. Santucci, 210 W.Va. 483, 557 S.E.2d 890 (2001).

2. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

i

Per Curiam: Terry Lee Phillips (hereinafter "Appellant") appeals from the April 23, 2009, order of the Circuit Court of Kanawha County denying his petition for a writ of prohibition against the West Virginia Division of Motor Vehicles (hereinafter "DMV"). Appellant alleged in his circuit court petition1 that DMV had exceeded its authority by improperly designating an out-of-state conviction for a moving violation as a hazardous driving offense. Upon review of the parties' briefs and oral arguments in light of the pertinent law, we affirm the decision of the circuit court.

I. Factual and Procedural Background Appellant was issued a citation while driving on Interstate 77 in the State of Virginia on March 27, 2007. He was cited for "Reckless Driving" by speeding eighty-five miles per hour in a sixty-five miles per hour zone in violation of Virginia Code

Download 35436.pdf

West Virginia Law