Hugh Caperton is not going down without a fight. Despite losing three times in front of the Supreme Court of Appeals of West Virginia, most recently on November 12 when the court voted 4-1 to reverse the $50 million verdict that he and his companies recovered against A. T. Massey Coal Co. and its subsidiaries, he has filed a petition for rehearing with the court, which focuses on its decision to apply retroactively the points of law established in its opinion. Here’s the opening paragraph from the petition:

In its zeal and determination to deliver a complete, total and final victory to Massey, this Court, by adopting the written opinion of acting Chief Justice Robin Jean Davis, has violated Hugh Caperton’s right to due process 1) by overturning settled West Virginia law and creating a new and drastically different  test for the applicability of forum selection clauses, and then applying that test retroactively; 2) by refusing to follow the mandate of the Supreme Court of the United States by relying improperly upon the constitutionally-tainted previous opinions of this Court rather than reviewing the case anew; 3) by entirely ignoring the West Virginia Legislature’s statutory enactments and policy pronouncements regarding venue and other procedural dismissals of cases; and 4) by granting the dismissal of Caperton’s claims with prejudice even though improper venue serves as the sole basis for this Court’s decision to overturn a fully justified jury verdict returned against Massey. The consequences of this Court’s erroneous ruling are neither fair nor just.

I think Caperton’s argument that the court’s decision to apply retroactively its newly-enunciated test regarding a forum-selection clause is his most persuasive, but as a practical matter, with a vote of 4-1, two justices — I’m assuming Justice Margaret Workman, who filed her strongly-worded dissent on Monday, would vote to grant the petition — have to decide to rehear Caperton’s case, which is an uphill battle, considering the history of this case.

The court’s September term ended last week and its new term begins on January 12. According to the court’s January calendar, its first rehearing conference is on January 14, which is when it will likely consider Caperton’s petition.