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Hearing on Waverly Elementary School lawsuit brings no decision

Fred Clark, left, listens to opening remarks from attorney Pat McFarland, right, during a hearing Monday in Wood County Circuit Court concerning a lawsuit by Waverly resident Sharon Corbitt to reopen Waverly Elementary School. Clark filed a lawsuit in Kanawha County Circuit Court to prevent the closure of Waverly School and Wood County Schools legal counsel has asked for the local lawsuit to be dismissed or combined with the lawsuit in Kanawha. (Photo by Michael Erb)

PARKERSBURG — A judge made no decision Monday in a hearing for a lawsuit concerning the closed Waverly Elementary School.

Wood County Circuit Court Judge J.D. Beane listened to arguments concerning a motion to dismiss a request to reopen the school this fall as well as a motion by the defense to move the lawsuit to Kanawha County Circuit Court to combine it with an existing lawsuit. In opening remarks, Beane said he would rule to transfer the case to Kanawha County unless sufficient reason could be presented to keep the suit in the local courts.

Waverly School and Williamstown Elementary School closed at the end of the 2019-20 school year, and will reopen this fall in the newly-constructed Williamstown-Waverly Elementary School in Williamstown. Waverly residents and supporters have opposed the decision.

Attorney Aaron Boone, representing the Wood County Board of Education, argued Monday the recent lawsuit by Waverly resident Sharon Corbitt was similar to a suit already in Kanawha County Circuit Court filed by the Save Waverly Elementary School Association. Corbitt is part of the organization and testified in the hearing in Kanawha County. Attorney Fred Clark, who filed the lawsuit in Charleston on behalf of Waverly residents and the organization, attended Monday’s hearing in Wood County with Corbitt.

Attorney Pat McFarland, who represents Corbitt, said the two cases concern different issues and should not be combined.

Wood County Board of Education members Ron Tice, left, and Rick Olcott, right, listen to a hearing Monday in Wood County Circuit Court concerning a lawsuit to reopen Waverly Elementary School. (Photo by Michael Erb)

“Removal is not warranted in this case,” McFarland said. “This lawsuit does not arise out of the same set of acts and transactions as the lawsuit in Charleston.”

McFarland said the case filed in Kanawha County questioned the method by which Waverly and several other Wood County schools were selected for closure and consolidation and whether the process was correctly handled. The suit by Corbitt, however, concentrates on the detrimental effect of closing Waverly School during a pandemic in which social distancing and other steps must be taken to protect children and teachers from the spread of the virus. The suit argues the move places more children at risk due to increased enrollment numbers in the new school and increased bussing, whereas leaving Waverly open would reduce those risks.

“There are similarities” between the two lawsuits, McFarland said, but the new suit has “absolutely nothing to do with if it was proper to close Waverly.”

Boone said a request for a preliminary injunction to keep Waverly School open was denied by a Kanawha County judge after three days of testimony. During that hearing, Boone objected to testimony and questions concerning COVID-19 and the district’s re-entry plan. The judge agreed and upheld the objection.

“Since that evidentiary hearing, which the Wood County Board of Education won summarily, plaintiffs in that Kanawha County lawsuit have filed interrogatories on the board of education” requesting information on communication between Wood County Schools and state officials concerning a re-entry plan and steps being taken to safely reopen during the COVID-19 pandemic, Boone said. “Clearly the plaintiffs in the Kanawha County lawsuit are attempting vigorously to make the re-entry plan and our compliance with CDC regulations a critical and relevant element.”

Because the Kanawha courts already will have to deal with those issues and information as well as other issues which have already been reviewed by that court, Boone said handling the two suits in two different counties would duplicate effort of services and be a waste of court resources.

McFarland argued any request for discovery “is extremely broad” and that the decision to not allow testimony and questions concerning COVID-19 issues in the Kanawha County Circuit Court hearing shows the two suits are not the same.

McFarland also said in terms of resources, both the plaintiff and defense for the local case are in Wood County.

“They’re not in Charleston,” he said. “It would be more convenient to conduct any evidentiary hearings in this case here.”

Beane did not give a timeline on when he would announce a decision, but said he would work with both sides to determine the date for another hearing. McFarland expressed concerns, saying the start of the new school year on Sept. 8 is only about five weeks away.

Michael Erb can be reached at merb@newsandsentinel.com.

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