IN THE CIRCUIT COURT OF CLAY COUNTY, WEST VIRGINIA FRANK MURPHY and BETTY MURPHY, Plaintiffs v. CA No. 05-C-15 (Hon. Richard A. Facemire) GINO S DISTRIBUTING, INC., Defendant JUDGMENT ORDER This matter came on for trial this 12 th day of December, 2007 pursuant to the scheduling order of this Court previously entered. Kevin Duffy, Esq. appeared for the Plaintiffs, Frank and Betty Murphy. William V. DePaulo, Esq. appeared for Defendant, Ginos Distributing, Inc. A panel of 10 jurors was drawn at random, and the Court read a statement outlining the facts of the case to the panel of jurors. Voire dire was conducted by the Court and by counsel for the parties. No party made any motion to strike for cause. The parties exercised two strikes each with respect to the remaining ten jurors. Opening statements were made by counsel, following which Plaintiffs called as witnesses the following persons: Oshel Craigo and Frank Murphy, both of whom were cross examined by Defendant. The Plaintiffs offered exhibits into evidence, which the Court, noting objections of Defendant, admitted, at which point Plaintiffs rested. Plaintiffs and Defendant both moved for judgment as a matter of law under Rule 50, W. Va. R. Civ. P., which the Court denied. The Defendant called as a witness Becky Koch. At the conclusion of the testimony, Defendant moved the admission of exhibits which the - 1 -
Court, noting the Plaintiffs objections, granted. Both parties renewed motions for judgment and both motions were denied. Thereupon the Court adjourned for the day. At 9:00 AM on December 13, 2006, the proceeding resumed. The Court instructed the jury as to the law, and counsel made final arguments. The Court tendered to the jury the exhibits admitted at trial, a copy of the Court s instructions and an interrogatory verdict form, accepted by all parties asking the jury to answer the following: 1. Did the Murphys and Gino s have a meeting of the minds as to all material terms of any extension of the lease beyond June 2003? YES NO 2. If you answered YES to question 1, did the parties have a meeting of the minds to extend the lease for a term of: ONE YEAR FIVE YEARS 3. If the parties had a meeting of the minds to extend the lease for a term of five years, did the Murphys do what they could by reasonable effort, to reduce or mitigate their damages, by trying to release the property, after January 2005? YES NO Following closing argument, the jury retired to the jury room. After deliberation the jury signified they had reached a verdict. The bailiff retrieved the verdict form from - 2 -
the jury foreman, and the Court read it to the parties. The verdict form was signed by the Foreperson, and recorded that the jurors had unanimously NO to the interrogatory: Did the Murphys and Gino s have a meeting of the minds as to all material terms of any extension of the lease beyond June 2003? All parties had an opportunity to inspect the interrogatory as signed. The Plaintiffs requested a poll of the jury which was taken and which recorded all jurors as voting NO to the interrogatory number 1. Based upon the jurors finding, it is hereby ORDERED, ADJUDGED AND DECREED that judgment be entered for the Defendant Ginos Distributing, Inc and against Plaintiffs Frank and Betty Murphy, and that the Plaintiffs Complaint and the claims stated therein are dismissed with prejudice and the matter is stricken from the Court s docket. The Defendant is instructed to submit a bill of costs in this proceeding pursuant to the provisions of W.V. Code 59-2-1 et seq. ENTER this day of February, 2007. Richard Facemire, Circuit Judge - 3 -
ORDER SUBMITTED BY: William V. DePaulo, Esq. #995 179 Summers Street, Suite 232 Charleston, WV 25301-2163 Tel: 304-342-5588 Fax: 304-342-5505 william.depaulo@gmail.com Barbara A. Harmon-Schamberger, Esq. #7296 P. O. Box 456 Clay, WV 25043-0456 Tel: 304-587-6025 Fax: 304-587-6026 bschamberger1935@yahoo.com ORDER APPROVED AS TO FORM: Kevin C. Duffy, Esq. #7276 P. O. Box 186 Clay, WV 25043-0186 Tel: 304-587-2750 Fax: 304-587-4868-4 -
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Judgment Order was mailed, postage pre-paid, this 29 th day of January, 2007 to the following persons at the addresses indicated: Kevin C. Duffy, Esq. #7276 P. O. Box 186 Clay, WV 25043-0186 Tel: 304-587-2750 Fax: 304-587-4868 William V. DePaulo - 5 -