Opinion Summary List Sample

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SUMMARY OF RECENT OPINIONS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
http://www.state.wv.us/wvsca/Opinions.htm
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March 9, 2001
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Today’s issue covers 9 opinions released on February 23, 2001, and 6 opinions released on March 9, 2001.

Best regards,

Rory Perry
Clerk of Court

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CHILD ABUSE and NEGLECT
Hearing to determine whether relinquishment was free from fraud or duress

STATE EX REL. ROSE L. v. PANCAKE, No. 27910 (Starcher, J.)(Davis, J., concurring)(February 23, 2001).
Denying writ of prohibition, and holding that a circuit judge does have authority to conduct a hearing to determine whether the signing by a parent of an agreement relinquishing parental rights was free from duress and fraud.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/27910.htm

CRIMINAL
Improper prosecutorial argument

STATE v. ADKINS, No. 28471 (Per Curiam)(March 9, 2001).
Affirming unlawful wounding conviction with sentence of one to five years imprisonment. Rejecting contention that the prosecution engaged in improper closing argument.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28471.htm

EMPLOYMENT: WRONGFUL TERMINATION
Reduction of verdict – mitigation of damages

SEYMOUR v. PENDLETON COMMUNITY CARE, et al., No. 28461 (Per Curiam)(Davis, J., concurring in part and dissenting in part)(Starcher, J., concurring)(Maynard, J., dissenting)(February 23, 2001).
Reversing circuit court’s decision to reduce jury verdict in wrongful termination action from $526,000 to $172, 235.92, and determining that there was a sufficient factual basis for the jury to conclude that the plaintiff had attempted to mitigate her damages.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28461.htm

ENVIRONMENT
Surface mining -- state/federal regulatory conflict

DK EXCAVATING v. MIANO, No. 28478 (Albright, J.)(Maynard, J., dissenting)(February 23, 2001).
Amendment to state surface mining act that was expressly disapproved by OSM as inconsistent with the federal act cannot be deemed as an amendment to the approved West Virginia surface mining plan. Amendment involved removal of coal incidental to a construction project without a permit.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28478.htm

EVIDENCE: TORTS
Wilt/Daubert analysis unnecessary to evaluate technical, rather than scientific, testimony

WATSON v. INCO ALLOYS INT’L, Inc., et al., No. 28469 (Davis, J.)(March 9, 2001).
Reversing circuit court’s grant of summary judgment to defendant, where the circuit court found that plaintiff failed to present admissible expert testimony. Wilt/Daubert standard for evaluating scientific evidence does not apply to testimony founded on technical, rather than scientific, testimony. Engineer entitled to testify as to causation and enhancement of injuries.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28469.htm

LANDLORD/TENANT
Wrongful eviction – admission of impeachment evidence

STEWART v. JOHNSON, No. 28462 (Per Curiam)(Maynard, J., dissenting)(Starcher, J., concurring)(February 23, 2001).
Reversing circuit court’s grant of summary judgment in favor of landlord in dispute between landlord and his contractor/renter. Remanding for further proceedings, and holding that contractor/renter was entitled to impeach landlord with written statements he made in response to prior magistrate and circuit court complaints.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28462.htm

PROCEDURE
Relation-back of amendment adding partner as party defendant in suit against partnership

LAWSON v. HASH and BENFORD, et al., No. 28204 (Per Curiam)(March 9, 2001).
Reversing circuit court’s decision to deny plaintiff’s motion to amend the complaint and to grant defendant’s motion to dismiss. Plaintiff’s R. Civ. P 15(c) motion should have been granted because the individual partner had knowledge and notice of the action when it was filed. Remanded for further proceedings.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28204.htm

PROPERTY
Establishment and use of easement

RATCLIFF v. CYRUS, No. 28395 (Per Curiam)(February 23, 2001).
Reversing in part, affirming in part, and remanding matter concerning the use of an easement between adjacent landowners.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28478.htm

PROPERTY
Determination of appertenant vs. gross easement

STRICKLIN V. MEADOWS, No. 28480 (Per Curiam)(February 23, 2001).
Reversing a circuit court determination that the deed establishing a disputed easement was ambiguous and that the easement was in gross rather than appertenant. The Court held that the establishment of the easement in the deed was clear, that extrinsic evidence admitted by the circuit court was unnecessary, and concluded that the easement was an appertenant easement.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28480.htm

SECURED TRANSACTIONS
Creation of third-party lien with debtor’s consent constitutes a "transfer" under the WV Uniform Fraudulent Transfers Act

NICHOLAS LOAN and MORTGAGE, Inc. v. W. VA. COAL CO-OP, Inc., et al., No. 28487 (Starcher, J.)(March 9, 2001).
Reversing circuit court’s award of summary judgment to debtors and remanding for further proceedings, in light of evidence suggesting that debtors acted with intent to delay, hinder, or defraud lendor by allowing creation of third-party liens against the secured assets.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28487.htm

STATUTES OF LIMITATION
Complaint sounding in both tort and contract not precluded by a tort statute of limitations

FULLER v. RIFFE, No. 28662 (Per Curiam)(March 9, 2001).
Reversing circuit court’s grant of summary judgment based upon the two-year limitations period applicable to tort actions. After review, the Court held that the complaint could also be read as stating a contract cause of action, and therefore should not be precluded by a tort statute of limitations.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28662.htm

TAXATION
Application of sales tax exemption for data processing

RGIS INVENTORY SPECIALISTS v. PALMER, No. 28212 (Starcher, J.)(February 23, 2001).
Provider of inventory services sought to take advantage of state sales tax exemption for "electronic data processing." The Court held that the process of creating data (i.e. observing and counting the number of items on the shelf) is not exempt. Once the data is created, however, the electronic processing of the inventory data does fall within the exemption.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28212.htm

TORTS
Admission of medical bills -- discovery sanctions

HADOX v. MARTIN, No. 28242 (Per Curiam)(February 23, 2001).
Reversing a defense jury verdict in personal injury action on the basis that the circuit court erred in applying de facto sanctions, in refusing to admit medical bills and the accident report. Remanded for new trial.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28242.htm

TORTS
Claims against the State -- Effect of verdict in civil action upon actions in Court of Claims

STATE EX REL. MCLAUGHLIN v. THE WEST VIRGINIA COURT OF CLAIMS, et al., No. 28716 (Per Curiam)(McGraw, C.J., dissenting)(February 23, 2001).
Maintenance of claim and subsequent entry of jury verdict favorable to plaintiff in personal injury action against the Division of Highways in an amount above the State’s insurance coverage acts as a bar to docketing a complaint against the State in the Court of Claims. Request for writ of mandamus requiring the claim to be re-docketed denied.

To read the full text of this opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28716.htm

TORTS
Reasonable time to retain standard of care or causation expert

DANIEL v. CHARLESTON AREA MEDICAL CTR., et al., No. 28463 (Albright, J.)(Davis, J. and Maynard, J., concurring)(March 9, 2001).
Reversing circuit court’s grant of summary judgment in medical malpractice action, and holding that once a trial court determines that a standard of care or causation expert is necessary in an MPLA action, a reasonable period of time must be provided for retention of an expert witness.

To read the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28463.htm

To read the full text of the concurring opinion, go to:
http://www.state.wv.us/wvsca/docs/spring01/28463c.htm

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