CHARLESTON, W.Va. (Legal Newsline) - The lone dissenter in the controversial $50 million case heard three times by the West Virginia Supreme Court has harsh words for the majority.

Justice Margaret Workman released her dissent Monday, saying the four justices who ruled in favor of Massey Energy stripped the company's 'victims' of their rightful verdict by creating new law and manipulating existing law.

"Neither the sheer length of the majority's opinion, nor the large number of cases cited (but erroneously applied), nor even its expansive conclusory statements, can obfuscate its lack of sound legal reasoning and its result-driven approach," Workman wrote.

West Virginia's justices voted 4-1 Nov. 12 to reverse the Boone County award in favor of Harman Mining, which had twice complained about which justices participated in the case.

A 3-2 decision in 2007 in favor of Massey overturned the verdict before Harman owner Hugh Caperton complained about the relationship between Massey CEO Don Blankenship and then-Justice Spike Maynard. The two had been photographed together in Monaco, where they claim they had been vacationing separately at the same time.

In March 2008, the justices (minus Maynard) again voted 3-2 in favor of Massey, and Caperton complained that Justice Brent Benjamin shouldn't have participated because Blankenship spent millions of dollars supporting his 2004 campaign.

The issue came before the U.S. Supreme Court in March, and it ruled in a 5-4 vote that Benjamin should have recused himself, setting the stage for a third decision.

That decision, like the other two, focused on a forum-selection clause in a coal supply contract between the two parties. It said all disputes arising from the contract must be brought in a county in Virginia.

Workman says Massey's fradulent conduct bore no connection to the contract so the tort claims asserted should not be governed by the forum-selection clause.

Massey was also not a party to the contract, Workman says. The majority held that one of its alleged fraudulent acts was performed in connection with it, however. Wellmore was a subsidiary of United Coal, which was purchased by Massey.

Workman says the facts introduced at trial show Massey conducted a scheme to expand the market for its own coal and put Harman out of business.

She adds that the majority wrongly retroactively applied new principles of law to the case. She also says the majority misstates that forum-selection clauses are viewed with favor in West Virginia.

"Specifically, the majority sets forth the following four factors for consideration: (1) whether the clause was reasonably communicated to the party resisting enforcement, (2) whether the clause is mandatory or permissive, (3) whether the claims and parties involved in the suit are subject to the forum-selection clause, and (4) whether the resisting party has rebutted the presumption of enforceability by making a sufficiently strong showing that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching," Workman wrote.

"Although at least two of these four new factors obviously require fact-driven determinations, the majority not only adopts these new principles of law out of the blue, it then refuses to give the plaintiffs a chance to present evidence on them and, incredibly, proceeds to make de novo findings of fact themselves!"

Blankenship had spent about $3 million through a political action committe in 2004 to unseat incumbent Justice Warren McGraw. Benjamin eventually defeated McGraw.

After Maynard's recusal, Harman's attorneys relentlessly pushed Benjamin to step down from the case. Benjamin said he had no financial interest in the outcome and refused.

Then-Justice Larry Starcher, an outspoken critic of Blankenship's, voluntarily stepped down with the hope it would inspire Benjamin to do the same. It did not.

Starcher had wrote a dissenting opinion after the first 3-2 vote. Justice Robin Davis wrote all three majority opinions.

"Let's not forget why the jury's verdict was justified: the jurors looked Mr. Blankenship in the eye and concluded that he was lying, and that Mr. Caperton was telling the truth," Starcher wrote.

"The majority opinion says: 'That doesn't matter' - it all should have been handled in Virginia. To which argument, one must respond: 'Horse puckey!'"

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.