NOLAND v. VIRGINIA INSURANCE RECIPROCAL, et al., No. 34702 (DAVIS, J.)(September 24, 2009). Granting mixed relief from an order of the Circuit Court of Raleigh County that granted partial summary judgment in favor of Virginia Insurance Reciprocal and dismissed claims against the remaining appellees. Reviewing the plain language of the primary and excess insurance policies at issue to conclude that there was no language that extinguished VIR's duty to continue defending the appellant under the funds remaining in the excess policy after a settlement occurred, especially in light of the fact that the very purpose of the umbrella policy was to provide coverage once the primary policy limits had been exhausted, in addition to the fact that the clear language of the umbrella policy provides that it will defend the appellant if the limits of the primary policy are exhausted. Further concluding that the "other insurance" clause in the umbrella policy cannot be invoked to preclude its defense of the appellant after the date of the settlement. Concluding that the circuit court properly dismissed both statutory and common law bad faith claims on statute of limitations grounds. Holding in syllabus point 4 that: "[t]he one year statute of limitations contained in W. Va. Code 55-2-12(c) applies to a common law bad faith claim." Further holding, in syllabus point 5: "In a first-party bad faith claim that is based upon an insurer's refusal to defend, and is brought under W. Va. Code 33-11-4(9) and/or as a common law bad faith claim, the statute of limitations begins to run on the claim when the insured knows or reasonably should have known that the insured refused to defend him or her in an action."

STONE BROOKE LIMITED PARTNERSHIP v. SISSINNI, ASSESSOR OF BROOKE COUNTY, et al., No. 34423 -AND- HEATHERMOOR LIMITED PARTNERSHIP v. ALONGI, ASSESSOR OF HANCOCK COUNTY, et al., No. 34424 -AND- PINE HAVEN LIMITED PARTNMERSHIP, et al. v. ADKINS, ASSESSOR OF CABELL COUNTY, et al., No. 34863 (DAVIS, J.)(Benjamin, J., concurring)(Ketchum, J., concurring)(September 24, 2009). In three consolidated cases arising from the Circuit Courts of Brooke, Hancock and Cabell Counties, addressing the proper method of assessing the value for purposes of ad valorem taxation of real property participating in the Low Income Housing Tax Credit Program. Concluding that the Brooke and Hancock County Circuit Court orders properly upheld the assessor's selection of the cost approach as the most accurate method of appraising the properties at issue, but concluding that the lower court failed to address whether the assessors had analyzed each of the factors to be considered in the appraisal of commercial real property set forth in W. Va. C.S.R. 110-1P-2.1.1 to 2.1.4, and remanding for further proceedings. Reversing the Cabell County Circuit Court's order because the assessor presented substantial evidence to support his cost approach and the circuit court's order did not address whether the assessor had analyzed each of the required factors, and remanding for reinstatement of the cost approach appraisals and for review the correctness of the assessor's application of the required criteria.

JEFFERSON COUNTY CITIZENS FOR ECONOMIC PRESERVATION v. COUNTY COMMISSION OF JEFFERSON COUNTY, et al., No. 34583 (KETCHUM, J.)(September 24, 2009). Reversing an order of the Circuit Court of Jefferson County that granted summary judgment in favor of a group that challenged the adoption of amendments to the county zoning ordinance that lowered the permitted housing density in the county's rural district. Holding that because the land use ordinance concerning amendments to the county's comprehensive plan relied solely upon a statutory scheme previously repealed, the ordinance is without authority to mandate the procedures to be followed by the county commission and planning commission in adopting or rejecting proposed amendments to the comprehensive plan and related ordinances. Remanding for reinstatement of the 2005 amendments to the ordinance.

CARPENTER v. LUKE, No. 34497 (Per Curiam)(September 24, 2009). Affirming an order of the Circuit Court of Harrison County that denied a motion to alter or amend judgment and a motion for new trial in a property dispute. Holding that the trial court properly entered judgment as a matter of law in favor of the plaintiff below on the issue of disputed ownership of certain real estate. Concluding that the trial court properly interpreted the context associated with the phrase "middle of the public road" set forth in the deed description, and further was correct in concluding that the defendant below's father could not have been a bona fide purchaser of land that was not included in his property description.

This is a test.

On October 9, 2008, the Court approved four rule changes related to mass litigation that become effective immediately. Those changes are:

1. Amendments to Trial Court Rule 26: These amendments relate to the Mass Litigation Panel, referral of cases, and conduct of business before the Panel, among other changes. An engrossed version of TCR 26 is also available.
2. New Trial Court Rule 15: This is a new rule that will allow the implementation of electronic filing and service in cases referred to the Mass Litigation Panel under Trial Court Rule 26. Electronic filing and service will not be used to initiate cases, and implementation will be triggered by entry of an order by the Panel (See TCR 15.02).
3. Amendment to Trial Court Rule 16.05(a): This amendment adds mass litigation to a list of exceptions from time standards otherwise applicable in civil litigation.
4. Amendment to Rule of Civil Procedure 5(e): This amendment enables electronic filing and service for post-complaint filings, following the model used to enable filing by facsimile.

In addition, the Court approved an amendment to Rule of Civil Procedure 3(a) that becomes effective on November 10, 2008. The amendment adds a second sentence to the existing rule, as follows: "(a) Complaint. [~] A civil action is commenced by filing a complaint with the court. For a complaint naming more than one individual plaintiff not related by marriage, a derivative or fiduciary relationship, each plaintiff shall be assigned a separate civil action number and be docketed as a separate civil action and be charged a separate fee by the clerk of a circuit court." For additional background on this rule, see syllabus points 3 and 4 of CABLE v. HATFIELD, 202 W.Va. 638, 505 S.E.2nd 701 (Davis, C.J.)(July 7, 1998).

Summaries of the first seven opinions issued in the September 2008 term of court were posted today. One opinion, Savarese v. Allstate, resolved a case that was argued in the January term of court. Unless otherwise stated, in all opinions issued this term, Justice Albright is not participating and Senior Status Justice McHugh is sitting by temporary assignment.

The final day of arguments in the September term of court is Tuesday, October 29.

IN RE: SAMANTHA S. AND HOPE S., No. 33713 (Per Curiam)(Sept. 26, 2008). Granting mixed relief from an order of the Circuit Court of Mingo County that terminated parental rights and awarded physical custody to the paternal grandparents. Holding that the circuit court correctly terminated parental rights and awarded custody to the paternal grandparents. Holding that the circuit court erred in granting unsupervised visitation to the maternal grandparents, and remanding for entry of an order terminating the visitation rights of the maternal grandparents.

SAVARESE v. ALLSTATE INSURANCE CO., et al., No. 33443 (BENJAMIN, J.)(Starcher, J., dissenting)(McHugh, S.S.J., not participating)(September 26, 2008). Affirming an order of the Circuit Court of Ohio County that dismissed a first-party bad faith action, pursuant to W.Va. Code 56-1-1(c), for lack of subject matter jurisdiction. Holding, in syllabus point 2, that: "Pursuant to West Virginia Code 56-1-1(c) (2003), a nonresident plaintiff must establish that all or a substantial part of the acts giving rise to his or her claims occurred in West Virginia in order to establish that venue is appropriate in this state where no claims are asserted against a West Virginia resident. In an action arising from the failure to pay a nonresident plaintiff's medical payment claims arising under a contract of insurance entered into and governed by the law of another state, the nonresident plaintiff's retention of a West Virginia attorney and communications to that attorney in West Virginia that the medical payment claims have been denied are insufficient, standing alone, to satisfy the requirements of West Virginia Code 56-1-1(c)(2003)." (Note: This case was argued in the January 2008 term of court.)

EASTHAM v. CITY of HUNTINGTON, No. 33807 (Per Curiam)(Benjamin, J., concurring)(McHugh, S.S.J., not participating)(Sept. 30, 2008). Reversing an order of the Circuit Court of Cabell County. Holding that a city ordinance requiring city employees to be residents of the city did not conflict with constitutional and statutory protections provided to civil service employees, and construing the ordinance to require a pre-disciplinary hearing that comports with constitutional and statutory requirements.

LAWYER DISCIPLINARY BOARD v. MARK A. BLEVINS, No. 33281 (Per Curiam)(Starcher, J., concurring)(September 26, 2008). Imposing harsher discipline than recommended by the Hearing Panel Subcommittee, after concluding that "the magnitude of respondent Blevins' actions, which included, at a minimum, recklessly encouraging a convicted felon to intimidate, by violence or the threat of violence, certain former clients who owed the respondent money, warrants the annulment of the respondent's license to practice in this State." Imposing additional conditions to be satisfied prior to reinstatement.

WEST VIRGINIA PUBLIC RETIREMENT BOARD v. JERRY ALLEN WEAVER, No. 33864 (DAVIS, J.)(October 10, 2008). Affirming an order of the Circuit Court of Kanawha County that held a public retiree had forfeited retirement benefits because the employee had rendered "less than honorable service" pursuant to W.Va. Code 5-10A-1 and 5-10A-2(e)(2). Holding that the circuit court properly determined that the appellant's conviction for felony conspiracy to buy votes was sufficiently related to his public office as Assessor of Lincoln County so as to render him ineligible to receive retirement benefits.  [Permanent Link]  Google It! 

DAVIS MEMORIAL HOSPITAL v. WEST VIRGINIA STATE TAX COMM'R, No. 33862 (DAVIS, J.)(McHugh, S.S.J., disqualified)(Hutchison, J., by temporary assignment)(October 14, 2008). Affirming an order of the Circuit Court of Randolph County that affirmed an administrative denial of a claim for refund of West Virginia consumer sales tax and use tax paid for the year 2002. Holding that the circuit court properly included the hospital's receipts from patient revenues, also known as "exempt purpose income", in the definition of "support" as contained in West Virginia Code 11-15-9(a)(6)(F)(i)(II), thereby disqualifying the hospital from receiving an exemption from sales and use tax.

BEAHM, et al. v. 7-ELEVEN, INC. and MELISSA SPINKS, No. 33833 (Per Curiam)(Starcher, J., dissenting)(McHugh, S.S.J., not participating)(September 26, 2008). Affirming an order of the Circuit Court of Jefferson County that granted summary judgment to defendants in an action related to gasoline release from underground storage tanks. Applying the doctrine of virtual representation to conclude that privity exists between the appellants and plaintiffs in a prior action adjudicated on the merits. The prior action was sufficiently similar, and therefore the circuit court properly granted summary judgment on the basis of claim preclusion.

Posted today were summaries of each of the 66 opinions issued in the January 2008 term of court, comprising 26 signed opinions and 40 per curiam opinions.

CASES HELD OVER: Four cases submitted for decision in the January 2008 term of court were held over, with an opinion to issue during the September term. Those cases are: (1) SAVARESE v. ALLSTATE INS. CO., No. 33443(Argued January 23, 2008); (2) RASHID v. TARAKJI, No. 33596 (Argued April 1, 2008); (3) STATE EX REL. HATFIELD v. PAINTER, No. 33668 (Argued April 16, 2008); (4) LAWYER DISC. BD. v. WILLIAM H. DUTY, No. 33069, (Original opinion withdrawn when the Court granted a petition for rehearing. The case was re-argued on May 25, 2008. Thereafter, Chief Justice Maynard recused himself from the case, and the case will be set for a second re-argument in the September term.)

IN RE: SUMMER D., No. 33386 (Per Curiam)(February 26, 2008). Reversing an order of the Circuit Court of Brooke County that denied a motion by the guardian ad litem to amend an abuse & neglect petition. Holding that the circuit court erred in denying the motion to amend, because reasonable cause to believe additional abuse and neglect is imminent, but not encompassed by the allegations of the petition. Holding that the record is insufficient to determine the ability of the father to parent the child. Remanding for further proceedings.

IN RE: ABBIGAIL FAY B., No. 33716 (DAVIS, J.)(May 23, 2008). Affirming an order of the Circuit Court of Cabell County that denied an infant guardianship petition sought by the maternal grandparents, and returned the child's custody to her biological parents. Concluding that the circuit court properly determined that the appellants did not carry their burden of proving that the child was abused or neglected and failed to show that the biological mother was not a fit parent. Clarifying the circumstances in which a guardian may be appointed, and addressing aspects of Family Court Rule 48a, wherein allegations of abuse and neglect arise in family court and are subsequently transferred to circuit court for disposition.

FAUBLE v. NATIONWIDE MUTUAL FIRE INSURANCE CO., et al., No. 33667 (Per Curiam)(Maynard, C.J., dissenting)(June 16, 2008). Reversing an order of the Circuit Court of Berkeley County that denied attorney fees sought by policyholders in connection with litigation to reduce the amount of reimbursement that their insurance company sought from them. Holding that an award of attorney fees is appropriate because of the litigation obligation imposed upon the policyholders, but that there is no evidence to support the amount sought, and remanding for further proceedings to determine the amount of reasonable attorney fees, including the fees and costs associated with the appeal.

MESSER v. HUNTINGTON ANESTHESIA GROUP, INC., et al., No. 33663 (Per Curiam)(June 26, 2008). Vacating an order of the Circuit Court of Cabell County that granted summary judgment to defendants, following remand in MESSER I, See 218 W.Va. 4, 620 S.E.2d 144 (2005). Limiting discussion to the sole issue of whether a valid settlement agreement was reached following court-annexed mediation. Given the circumstances of the case, the record as a whole demonstrates that the mediated settlement was the result of a meeting of the minds, that counsel for the defendants had apparent authority to act on their behalf, with no showing by the defendants otherwise, and that counsel's reliance on one spokesperson for the defendants was reasonable under the circumstances. Accordingly, the mediated settlement should have been enforced, and the plaintiff is entitled to a reasonable award of attorney fees, to be determined upon remand.

WATSON v. SUNSET ADDITION PROPERTY OWNERS ASSOCIATION, INC., et al., No. 33338 (STARCHER, J.)(MAYNARD, C.J., disqualified)(Judge James Matish, by temporary assignment)(March 19, 2008). Reversing an order of the Circuit Court of Logan County that held a property owner's association in contempt for failing to install a sewage treatment plant for which they were unable to obtain a permit. Holding that ordinarily a party may not be held in contempt for failure to perform an act that the party is unable to legally perform, if the evidence establishes that the party's inability to legally perform the act is not the party's fault. Remanding for further proceedings, and directing that a separate administrative appeal related to the denial of the permit be transferred and consolidated with the action giving rise to the contempt order.

HOOVER v. MORAN, No. 33460 (Per Curiam)(March 14, 2008). Granting mixed relief from an order of the Circuit Court of Kanawha County that dismissed an action that sought recovery on an unwritten promise to pay a percentage of profits from the sale of a coal company. Holding that the complaint adequately set forth a cause of action against the defendant in his individual capacity. Further holding that even assuming the statute of frauds applies to this type of arrangement, the doctrine of promissory estoppel precludes dismissal, under the facts set out in the complaint. Rejecting the defendant's cross-assignment of error, and holding that the circuit court properly reinstated the action under Rule 41(b), where neither the plaintiff nor plaintiff's counsel received notice of the dismissal.

CAPERTON, et al. v. A.T. MASSEY COAL CO., et al., No. 33350 (DAVIS, J.)(Maynard, C.J., disqualified)(Starcher, J., disqualified)(Judge Donald Cookman and Judge Fred Fox sitting by temporary assignment)(Albright, J., and Judge Cookman dissenting)(Benjamin, A.C.J., and Judge Fox concurring)(April 3, 2008). In an opinion issued upon rehearing, reversing an order of the Circuit Court of Boone County that denied defendants' post-trial motions in response to the entry of judgment of more than $50 million in favor of the plaintiffs below. Resolving the appeal on two separate and mutually exclusive grounds. First, holding that the circuit court erred in failing to grant a motion to dismiss based upon the existence of a forum selection clause in a contract directly related to the dispute at issue. Setting forth extensive guidance for construing and applying a forum selection clause, both to signatories and non-signatories. Second, holding that res judicata is an independent basis for reversal, due to an earlier action litigated in Virginia, which defense may be raised on appeal when the prior action relied upon becomes final during the pendency of the appeal.

DODD, et al. v. POTOMAC RIVERSIDE FARM, INC., et al., No. 33501 (Per Curiam)(June 13, 2008). Granting mixed relief from orders of the Circuit Court of Berkeley County in a minority shareholder dissent action. Holding that the circuit court did not abuse its discretion by accepting the special commissioner's stock valuation determination, but that the circuit court's multi-level interest award was unfair and inequitable. Imposing six percent simple interest. Finally determining that the circuit court did not abuse its discretion when requiring the corporation to bear the costs of the proceeding.

STATE v. JOSHUA LEE SLATER, No. 33659 (MAYNARD, C.J.)(Starcher, J., dissenting)(Benjamin, J., concurring)(June 9, 2008). Affirming jury convictions arising from the Circuit Court of Kanawha County for the offenses of kidnaping, domestic battery, wanton endangerment and daytime burglary by breaking and entering. Holding that unauthorized entry is not an element of the crime of daytime burglary by breaking and entering. Further holding that the circuit court properly sentenced the defendant to life with mercy on the kidnaping charge, where there was sufficient evidence for the jury to conclude that a concession was obtained. Further concluding that the sentence was within statutory limits and therefore not reviewable, that the jury's questions during deliberations were not the type requiring explanation beyond referring to the jury instructions, and that other objections to the jury instructions were waived by defense counsel.

STATE v. WANDA CARNEY and BETTY JARVIS, No. 33522 (Per Curiam)(April 25, 2008). Reversing convictions for one count each of obstructing a police officer and conspiracy to obstruct a police officer. Because the conduct was effected without force, reiterating that any obstruction conviction must be supported by conduct that is unlawful or illegal. Holding that none of the three instances cited by the State involved illegal conduct, and there was no evidence that law enforcement's investigation was impeded. Because there is no evidence to support the obstruction convictions, the conspiracy conviction fails as well.

STATE v. MINDY KEESECKER, No. 33377 (Per Curiam)(Maynard, C.J., dissenting)(April 25, 2008). Reversing a jury conviction arising from the Circuit Court of Mercer County for six counts of sexual assault in the third degree. Holding that during closing argument the prosecutor improperly referred to the defendant's decision not to testify at trial. In light of the fact that the State's substantive evidence consisted only of the testimony of the victim and a prior written statement by the defendant, the prosecutor's statements were erroneous and prejudicial, and were not harmless error. Remanded for new trial.

STATE v. DAVID GABRIEL STAMM, No. 33505 (DAVIS, J.)(May 23, 2008). Reversing a conviction arising from the Circuit Court of Harrison County, for the felony offense of failure to meet an obligation to provide support to a minor under W. Va. Code 61-5-29. Holding, in syllabus point 5 that: "Insofar as W.Va. Code 61-5-29(3)(1999)(Repl. Vol. 2005) shifts to a defendant the burden of disproving a material element of the State's case, in violation of the due process clauses found in Article II, Section 10, of the Constitution of West Virginia, and the Fourteenth Amendment to the United States Constitution, that individual provision, severed from the remainder of W. Va. Code 61-5-29, is unconstitutional and unenforceable. W. Va. Code Sections 61-5-29(1) and (2) remain fully enforceable." Under the circumstances of the case, further holding that a jury instructions did not render harmless the constitutional error of the burden-shifting statute, because the jury instructions could have misled the jury into believing that the defendant bore the burden of proof as to his ability to pay support. Remanded for a new trial.

STATE v. JOSHUA C. WEARS, No. 33529 (Per Curiam)(June 26, 2008). Affirming a conditional guilty plea arising from the Circuit Court of Putnam County for one count of Third Degree Sexual Assault. Holding that the circuit court properly excluded certain evidence related to prior sexual conduct of the victim, where despite ample opportunity the defendant did not produce a proffer of evidence that was adequate to overcome the rape shield statute.

STATE v. JOHN LOWERY, No. 33660 (Per Curiam)(May 27, 2008). Affirming jury convictions arising from the Circuit Court of Kanawha County on two felony counts of sexual assault in the third degree and two misdemeanor counts of sexual abuse in the third degree. Holding that admission of a pastor's testimony was proper because the defendant did not make any confidential communication or confession to the pastor witness that was revealed by the pastor's testimony. Further holding that the trial court properly decided not to declare a mistrial after an outburst by a spectator, where the trial court immediately ejected the spectator and gave the jury a curative instruction. Finally holding that the four-year age difference required under the felony counts was adequately proven by the State's evidence that the victim was fifteen, the jury's ability to observe the appearance of the defendant, and the jury's knowledge of the fact that the defendant was married with children.

STATE v. DREU FERGUSON, JR., No. 33530 (Per Curiam)(February 28, 2008). Reversing an order of the Circuit Court of Mason County that denied a motion for new trial following a jury conviction for voluntary manslaughter. Holding that the circuit court improperly struck expert testimony presented by the defendant. Holding that the expert testimony sufficiently set forth that the defendant's mental state at the time of the crime would have prevented him from forming intent to kill, thus establishing the diminished capacity defense. Remanded for new trial.

STATE v. HAROLD LEE CYRUS, No. 33453 (Per Curiam)(February 20, 2008). Affirming an order of the Circuit Court of Mercer County imposing sentence on two counts of sexual abuse by a custodian and two counts of incest. Holding that the state did not improperly present expert testimony of a CPS worker and a nurse practitioner. Holding at the witnesses were presented as fact witnesses by the state, and that expert testimony was elicited by the defendant's counsel on cross examination, and was therefore invited error. Further holding that evidence of abuse in McDowell County was intrinsic evidence not subject to Rule 404(b). Finally holding that there was no error in the admission of evidence from abuse & neglect proceedings, where both the state and the defendant relied upon those proceedings.

STATE EX REL. RONALD W. HOLCOMB v. SADLER, No. 33669 (Per Curiam)(February 15, 2008). Denying a writ of prohibition sought to prevent enforcement of an order of the Circuit Court of Mercer County that would permit DNA testing of fingernail scrapings of the 5 year-old victim, in a prosecution charging first degree murder and death of a child by a parent due to child abuse. Holding that the possibility of consumption of the evidence did not unfairly infringe upon the defendant's right to independent testing and cross examination, where appropriate protocols are available to be followed during the testing, such that the defendant's request for relief in prohibition is not warranted at this time.

GARY ALLEN GIBSON v. McBRIDE, No. 33321 (Per Curiam)(Benjamin, J., dissenting)(June 12, 2008). Affirming an order of the Circuit Court of Cabell County that granted habeas corpus relief and set aside a conviction for conspiracy to commit a murder that took place at the former West Virginia Penitentiary in Moundsville. Holding that the circuit court properly concluded that the defendant's constitutional right to a fair trial was violated when the trial court allowed key witnesses for the State, who were incarcerated at the time of trial, to testify in civilian clothing and without shackles while key defense witnesses, who were also incarcerated at the time of trial, testified wearing prison attire and were forced to wear shackles.

STATE v. JAMES LEE BROOKS, III, No. 33662 (ALBRIGHT, J.)(Starcher, J., concurring in part and dissenting in part)(May 23, 2008). Affirming jury convictions arising from the Circuit Court on Monongalia for the offenses of conspiracy to commit first-degree robbery, malicious assault, and conspiracy to commit malicious assault. (This case was granted only as to a single assignment of error.) Rejecting appellant's contention that his transfer from juvenile to adult jurisdiction solely on the charge of first-degree robbery precluded indictment on additional related charges, because those charges were formally not part of the basis for the original transfer. Holding, in syllabus point 2, that where the transfer is mandatory under W.Va. Code 49-5-10(d)(2)(2001)(Repl. Vol. 2004) "there is no statutory impediment that prevents the State form charging the juvenile by indictment with offenses that were not included in the transfer motion and/or hearing provided those additional offenses flow from the same factual allegations of criminal activity that were the subject of the transfer hearing."

STATE v. OWEN HAWK, III, No. 33435 (Per Curiam)(April 7, 2008). Affirming conviction for the offense of fleeing from an officer while under the influence of alcohol, obtained following jury trial in the Circuit Court of Roane County. Holding that the lower court did not err in denying a continuance due to disclosure of potentially exculpatory evidence on the evening before trial, where the evidence in question - the identity of another arrestee who may have witnessed certain conduct by the police after the defendant was arrested - was not material to the pending charges.

STATE EX REL. NATIONWIDE MUTUAL INS. CO., et al. v. KAUFMAN, et al., No. 33652 (DAVIS, J.)(JANUARY 25, 2008). Denying a writ of prohibition sought to prevent enforcement of an order of the Circuit Court of Kanawha County that required production of certain discovery materials for in camera inspection along with a privilege log, and denied a motion for protective order and stay of discovery sought by the insurance company. Expanding the WESTFIELD privilege log requirement to all cases where privilege is asserted. Applying the LIGHT multi-factor test to the general question of staying discovery against an insurer where an insured is a co-defendant. Holding that the circuit court correctly determined both issues, and declining to address a bifurcation issue raised because the circuit court had not yet ruled on the issue.

MESSER v. HANNAH, No. 33655 (BENJAMIN, J.)(Starcher, J., and Albright, J., dissenting)(June 26, 2008). Reversing an order of the Circuit Court of Mingo County that affirmed a decision by the Mingo County Civil Service Commission for Deputy Sheriffs that reinstated the appellee to his former rank with full back pay and no charges placed on his record, after the Sheriff had imposed indefinite suspension for submitting false travel vouchers. Holding that an appellate court can reverse a Civil Service Commission for Deputy Sheriffs where, as here, the commission's decision fails to consider an important aspect of the problem. Because the commission failed to consider the evidence of record offered by the prosecuting attorney to the effect that the appellee's integrity and credibility as a law enforcement officer had been irreparably compromised, the Sheriff's order imposing an indefinite suspension should be reinstated.

STATE EX REL. TUCKER COUNTY SOLID WASTE AUTHORITY v. WEST VIRGINIA DIVISION OF LABOR, et al., No. 33809 (DAVIS, J.)(Starcher, J., and Albright, J., dissenting)(June 26, 2008). Granting a writ of prohibition to prevent the Department of Labor from continuing administrative proceedings against the a county solid waste authority for failing to pay the prevailing wage to certain temporary workers. Examining whether the Prevailing Wage Act applies to employees of a public authority who are performing work that was never let to contract. Holding in syllabus point 8, that: "Pursuant to W. Va. Code 21-5A-1(7) (1961) (Repl. Vol. 2002), the terms 'employee' and 'workman,' as used in the West Virginia Prevailing Wage Act, W. Va. Code 21-5A-1, et seq., do not include workers who are (1) employed or hired by a public authority on a regular basis, (2) employed or hired by a public authority on a temporary basis, (3) employed or hired by a public authority to perform temporary repairs, or (4) employed or hired by a public authority to perform emergency repairs." Further concluding, in syllabus point 9: "W. Va. Code 21-5A-2 (1961)(Repl. Vol. 2002) requires the prevailing wage to be paid to all workmen who are employed 'on behalf of any public authority' and who are 'engaged in the construction of public improvements.' To the extent that our prior holding in Syllabus point 3 of AFFILIATED CONSTRUCTION TRADES FOUNDATION v. UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES, 210 W. Va. 456, 557 S.E.2d 863 (2001), is inconsistent with this holding, it is expressly modified."

MAY v. BOARD OF REVIEW, WEST VIRGINIA BUREAU OF EMPLOYMENT PROGRAMS, et al., No. 33703 (Per Curiam)(Maynard, C.J., disqualified)(June 17, 2008). Reversing an order of the Circuit Court of Kanawha County that affirmed an administrative decision denying unemployment compensation. Holding that substantial unilateral changes in the terms of the appellant's employment, instigated by her employer, necessitated her resignation, and that she was therefore not disqualified from receiving benefits. Holding that because the Board of Review ignored the factual evidence regarding the substantial unilateral changes in the appellant's employment and failed to analyze whether the changes were substantial and whether they amount to good cause, the Board of Review's findings and legal conclusions were erroneous.

CHILDRESS, et al. v. MUZZLE, et al., No. 33440 (STARCHER, J.)(March 19, 2008). Reversing an order of the Circuit Court of Kanawha County that had in turn reversed a decision by the Board of Review of the Bureau of Employment Programs. The BOR decision denied unemployment compensation to two employees who had accepted early retirement packages. Reviewing the relevant statutory scheme and addressing the "good cause" standard, and further holding that employees who accept an early retirement incentive package are disqualified from receiving unemployment compensation unless the employee can establish a well-grounded fear of imminent layoff and that the employee would suffer a substantial loss by not accepting the early retirement incentive package. Reinstating the BOR decision under the circumstances of the case, where neither employees' jobs were threatened if they did not accept the incentive package.

ROSEN v. ROSEN, No. 33437 (BENJAMIN, J.)(June 26, 2008). Affirming an order of the Circuit Court of Monongalia County that affirmed a family court ruling that retained jurisdiction over child custody matters. Construing application of the Uniform Child Custody Jurisdiction and Enforcement Act, and setting forth guidance for the term "home state" as used therein. Holding that the family court properly concluded that West Virginia is the home state, and because Ohio did not have jurisdiction, the family court did not violate the full and faith and credit clause by ignoring the Ohio court's order.

SOULSBY v. SOULSBY, No. 33661 (DAVIS, J.)(April 4, 2008). Granting mixed relief from an order of the Circuit Court of Putnam County that denied a petition for appeal from a family court order setting child support. Holding that the family court has authority to deviate from the statutory child support guidelines in certain circumstances. Holding that strict application of the child support guidelines results in an inequitable result where, as here, one parent has physical custody of two children, but the children are governed by two separate parenting arrangements. Holding that the child support obligation should be reduced by the percentage of time spent by the obligor parent under the extended shared parenting arrangement. Strongly urging the Legislature to provide guidance on this issue.

DEITZ v. DEITZ, No. 33446 (Per Curiam)(February 14, 2008). Granting mixed relief from an order of the Circuit Court of Gilmer County that affirmed a family court's determination that Mr. Deitz was in contempt, but reversed the contempt sanctions and remanded with instructions. Holding that the circuit court lacked jurisdiction to issue a sua sponte stay of the family court's order. Holding that the circuit court properly exercised jurisdiction over the timely appeal, but improperly modified the conditions attached to the contempt order; in light of the facts of the case, the short time periods to purge the contempt were not unreasonable. Further holding that the circuit court erred in determining that the family court failed to consider Mr. Deitz's ability to pay, in light of the evidence in the record, and further in light of Mr. Deitz's lack of proof on that issue. Finally holding that the circuit court erred in reversing the family court's sanction of imprisonment. Remanding with specific directions.

GUIDO v. GUIDO, No. 33599 (Per Curiam)(Albright, J., and Starcher, J., dissenting)(June 18, 2008). Affirming an order of the Circuit Court of Marion County that denied a petition for appeal from a decretal judgment for child support arrearages in the total amount of $22,767.17, on the basis that the petition was not properly completed. Holding that the requirement of service in W.Va. Code 51-2A-11(b) is mandatory, and that lack of a certificate of service upon the obligee and the Bureau for Child Support Enforcement is violation of a mandatory requirement, not a mere technical violation of procedural rules.

CREA v. CREA, No. 33656 (MAYNARD, C.J.)(June 18, 2008). Affirming an order of the Circuit Court of Jefferson County that denied a petition for appeal from a family court final order. Holding that the family court properly allocated marital debt between the parties, properly denied a credit for reduction in mortgage principle, and properly awarded alimony. Clarifying the Court's prior holding in WASHINGTON v. WASHINGTON, 221 W.Va. 224, 654 S.E.2d 110 (2007), and holding that the thirty-day appeal deadline set forth in Family Court Rule 28(a) is not jurisdictional, and may be extended for good cause. The petition under consideration was not timely filed, an no motion seeking an extension was presented. Accordingly, the circuit court's decision is correct.

WHITESIDE v. WHITESIDE, et al., No. 33514 (MAYNARD, C.J.)(Benjamin, J., disqualified)(Judge Alsop, by temporary assignment)(May 28, 2008). Reversing an order of the Circuit Court of Kanawha County that denied an appeal from family court in which the appellant sought to void a deed conveying her ex-husband's share of certain marital property to the intervenor below, Equity Holdings, LLC. Setting forth criteria for evaluating whether a transfer of property prior to the effective date of a final order of equitable distribution is valid. Because Equity Holdings had actual notice of the divorce proceedings and also knew of the appellant's intention to make claims against her ex-husband's share of the property, Equity Holdings is not a bona fide purchaser. Further holding that Mr. Whiteside's actions clearly establish an intent to avoid application of the equitable distribution statutes. Remanding for entry of an order voiding the deed, and for determination of a reasonable amount of attorney fees, pursuant to West Virginia Code 48-5-611(c), from either Mr. Whiteside or Equity Holdings, or from both jointly and severally.

STATE EX REL. JAMES BLAINE WALDRON v. SCOTT, No. 33434 (Per Curiam)(March 18, 2008). Affirming an order of the Circuit Court of McDowell County that denied habeas corpus relief without conducting an evidentiary hearing. Holding that although the order failed to make specific findings as to why an evidentiary hearing was not required, such omission was harmless in light of the fact that each issue raised was exhaustively addressed in the circuit court's order; and further in light of the fact that several of the issues were previously and finally adjudicated in the petitioner's direct appeal. The circuit court addressed the petitioner's claim of ineffective assistance of counsel in a very detailed fashion, and correctly held that the prejudice prong of the Strickland standard could not be satisfied.

HORKULIC, etc. v. GALLOWAY, et al. and TIG INSURANCE CO., Appellant --AND-- STATE EX REL. TIG INSURANCE CO. v. RECHT, et al., Nos. 33352 and 33353 (ALBRIGHT, J.)(MAYNARD, C.J., concurring)(DAVIS, J., concurring)(BENJAMIN, J., concurring)(February 19, 2008). Affirming an order of the Circuit Court of Hancock County that enforced a settlement agreement, and holding that the consent judgment contained in the settlement agreement would not be binding upon the insurer in subsequent bifurcated bad faith proceedings. Further holding that under the unique facts of the case, where the insurer was prohibited from participating in the plenary hearing on the settlement issues, and where the record was "littered with examples of uncertainty" about certain aspects of the settlement, that it was inequitable for the circuit court to award attorney fees. Granting a moulded writ, ad remanding with directions to conduct an evidentiary hearing as to the extent of the insurer's culpability in delaying enforcement of the settlement.

STATE EX REL. NATIONWIDE MUTUAL INS. CO. v. KARL, et al., No. 33651 (BENJAMIN, J.)(Maynard, C.J., dissenting)(Feb. 14, 2008). Denying a writ of prohibition sought by insurer to prevent enforcement of an order of the Circuit Court of Marshall County. Holding that the name of an insurance company's captive law firm may be identified during voir dire in the same manner as the captive firm otherwise identifies its affiliation with the insurer. Holding that the petitioner placed improper reliance upon a formal ethics opinion, L.E.I 99-01. Holding that separate and distinct voir dire questions should be used, so that the court may inquire of a juror's affiliation with the captive firm without associating the captive firm with defense counsel's office.

263 TOWING, INC. v. MARCUM TRUCKING CO., INC.; LONNIE HANNAH, SHERIFF OF MINGO COUNTY, Appellant, No. 33382 (ALBRIGHT, J.)(March 14, 2008). Reversing orders of the Circuit Court of Mingo County that declined to vacate an earlier ruling granting mandamus relief to compel the sheriff to sign pay orders authorized by the county commission, and further awarded attorney fees and prejudgment interest. Holding that under the Prompt Pay Act, a sheriff's duty to sign pay orders is nondiscretionary only if based upon invoices that reflect legitimate and uncontested costs. Giving effect to the language of the statute, and holding that in the rare case when a sheriff has good cause to doubt the legitimacy of an invoice, supported by demonstrable evidence, the sheriff may refuse to sign the pay order. Further setting forth procedures for requesting a hearing before the county commission in such circumstances. Remanding for further proceedings, including reconsideration of pre-judgment interest and attorney fees, and directing a special prosecutor be appointed to represent the sheriff.

HARRISON COUNTY COMMISSION, et al. v. HARRISON COUNTY ASSESSOR, No. 33381 (DAVIS, J.)(January 25, 2008). Affirming an order of the Circuit Court of Harrison County that granted a petition for a writ of mandamus. Holding that the circuit court correctly concluded that an assessor's hiring of employees to perform assessing and appraising duties is governed by West Virginia Code 11-1C-8(a), and that the advise and consent of the county commission is not required.

CARPENTER v. CICCHIRILLO, COMMISSIONER, No. 33654 (Per Curiam)(February 28, 2008). Reversing an order of the Circuit Court of Kanawha County that reversed an administrative decision to revoke a driver's license for driving under the influence. Holding that a minor delay in receipt of the Statement of Arresting Officer did not deprive the DMV of its duty to investigate and consider license revocation once it received the paperwork. In light of the fact that the driver was not subject to actual prejudice because of the delay, the circuit court erred in reversing the DMV's revocation decision.  [Permanent Link]  Google It! 

ST. LUKE'S UNITED METHODIST CHURCH, et al. v. CNG DEVELOPMENT CO., et al., No. 33527 (ALBRIGHT, J.)(June 12, 2008). Reversing an order of the Circuit Court of Ritchie County that dismissed portions of a complaint relating to partial recission in connection with an oil and gas lease dispute. Holding, in syllabus point 4, that: "A trial court may consider the equitable remedy of partial rescission in fashioning the relief to be awarded upon proof sufficient to establish a breach of the implied covenant of development in connection with an oil and gas lease dispute." Concluding that the trial court should impose a reasonable time period during which additional development efforts may be undertaken, and if additional drilling efforts have not been commenced, the trial court should take evidence to determine whether the appellant can prove either a breach of the implied duty of development or that she has suffered extreme hardship due to the alleged underdevelopment of the leased property. If either is proven, then the equitable remedy of partial recission may be utilized.

STATE EX REL. BLUE EAGLE LAND, LLC, et al. v. WEST VIRGINIA OIL & GAS CONSERVATION COMM'N, et al., No. 33705 (Per Curiam)(Benjamin, J., disqualified)(Judge John W. Hatcher, Jr., by temporary assignment)(May 27, 2008). Addressing a dispute over whether certain oil and gas wells were deep wells, and therefore regulated by the Oil & Gas Conservation Commission, or were shallow wells, regulated by the Shallow Well Gas Review Board. In light of the absence of a factual record, and the fact-dependant nature of the jurisdictional inquiry, holding that an appeal in circuit court is a more appropriate forum, and dismissing with leave to file an appeal within thirty days of issuance of the mandate, which shall be deemed to be a timely appeal.

MUTO v. SCOTT, et al., No. 33506 (MAYNARD, C.J.)(June 26, 2008). Reversing an order of the Circuit Court of Grant County that dismissed a personal injury action, after determining that the plaintiff's amended complaint did not relate back to the original complaint, and was therefore barred by the statute of limitations. Holding, in syllabus point 6, that "Under Rule 15(c)(3)(B) of the West Virginia Rules of Civil Procedure, a 'mistake concerning the identity of the proper party' may include the circumstance where the complaint names a 'John Doe' defendant due to the plaintiff's lack of knowledge of the proper defendant where the filing of the 'John Doe' complaint is not part of a deliberate strategy to achieve an advantage and the plaintiff's lack of knowledge is not due to the plaintiff's dilatory conduct in identifying the proper defendant prior to the expiration of the applicable statute of limitations." Under the circumstances of the case, the amended complaint should relate back.

CROFT, et al. v. TBR INC., et al., No. 33504 (Per Curiam)(Starcher, J., concurring)(Benjamin, J., dissenting)(March 18, 2008). Reversing an order of the Circuit Court of Ohio County that denied the plaintiff's motion for attorney fees and costs, where the defendants accepted Rule 68 offers of judgment to resolve sexual harassment-related claims brought under the Human Rights Act. Holding that under syllabus point 4 of SHAFER v. KINGS TIRE SERVICE, Inc., 215 W. Va. 169, 597 S.E.2d 302 (2004), Rule 68 offers of judgment do not act as a waiver of the right to seek statutory attorney fees unless the offer explicitly states that it is inclusive of attorney fees. Because the offers in the case were not explicit in that point, reversing and remanding for further proceedings to determine a reasonable amount of attorney fees and costs.

GROVES v. HILDRETH, et al., No. 33528 (Per Curiam)(June 3, 2008). Reversing an order of the Circuit Court of Roane County that granted default judgment in a mineral rights dispute in the amount of $704,000. Holding that the circuit court abused its discretion in refusing the motion to vacate the default judgment, especially in light of the fact that the plaintiffs' claim to the minerals at issue was not supported by evidence in the record or by any theory of law, and therefore the default judgment should have been set aside under Rule 60(b)(6) of the Rules of Civil Procedure.

LAWYER DISCIPLINARY BOARD v. MICHAEL P. MARKINS, No. 33256 (Per Curiam)(Starcher, J., concurring)(May 23, 2008). Imposing a two-year suspension from the practice of law and other sanctions, for violation of Rules 8.4(b) and (c) of the Rules of Professional Conduct, arising from conduct involving accessing e-mail of other lawyers without consent. Declining to depart downward from the sanctions recommended by the hearing Panel Subcommittee.

SEDLOCK, et al. v. MOYLE, et al., No. 33524 (Per Curiam)(May 23, 2008). Affirming an order of the Circuit Court of Harrison County that dismissed real estate sales transaction claims against real estate agents. Holding that under the circumstances of the case, the circuit court properly dismissed the claims under Rule 12(b)(6), because no duty was imposed on the real estate agents.

FOLIO, et al. v. HARRISON-CLARKSBURG HEALTH DEPT., et al., No. 33707 (Per Curiam)(June 17, 2008). Affirming an order of the Circuit Court of Harrison County that granted summary judgment to the defendants in an action arising out of a dispute over the relocation of the facilities of a local combined board of health. Holding that the circuit court correctly determined that there is no legal requirement to seek competitive bids prior to acquiring office rental space, and that no material issues of fact exist with regard to allegations of fraud or constructive fraud.

FAR AWAY FARM, LLC v. JEFFERSON COUNTY BOARD OF ZONING APPEALS, et al., No. 33438 (Per Curiam)(April 17, 2008). Reversing an order of the Circuit Court of Jefferson County that affirmed a decision by the Board of Zoning Appeals that denied a conditional use permit to a subdivision developer. Holding that under the zoning ordinance in effect at the time, the BZA was without jurisdiction to deny the permit. Further holding that all conditions necessary for issuance of the permit were satisfied. Remanded for entry of order granting the conditional use permit.

FORD, et al. v. DICKERSON, et al., No. 33449 (Per Curiam)(February 27, 2008). Affirming an order of the Circuit Court of Boone County that granted summary judgment to defendants in an action sought to enjoin obstruction of streets in an unincorporated town. Holding that the circuit properly determined that the streets were not public roads, in light of the fact that, under the third method outlined in RYAN v. MONONGALIA COUNTY COURT, 86 W.Va. 40, 102 S.E.2d 731 (1920), the plaintiffs had failed to established acceptance of the dedication by the proper authorities.

IN RE: PETITION FOR APPOINTMENT OF TRUSTEES FOR WOODLAWN CEMETERY, No. 33458 (Per Curiam)(June 2, 2008). Affirming an order of the Circuit Court of Marion County that appointed trustees in lieu of directors of a cemetery company, in light of the company's failure, since 1996, to comply with statutory directives to maintain the endowment.

MOUNTAIN COMMUNITIES FOR RESPONSIBLE ENERGY v. PUBLIC SERVICE COMM'N and BEECH RIDGE ENERGY, et al. --AND-- EISENBEISS v. PUBLIC SERVICE COMM'N and BEECH RIDGE ENERGY, et al., Nos. 33375 and 33376 (Per Curiam)(June 23, 2008). Affirming a decision by the Public Service Commission to issue a conditional siting certificate to build a wind-powered wholesale electric generating facility. Holding that the PSC was within its authority to issue a conditional certificate, and that the appellants will have an opportunity to address additional issues at a compliance hearing prior to construction. Further concluding that the PSC properly balanced the interests as charged by statute, and had no duty to appoint experts to investigate and develop the objections raised by the appellants.

SMITH v. STATE OF WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, No. 33502 (MAYNARD, C.J.)(Starcher, J., and Albright, J., dissenting)(May 30, 2008). Answering a certified question from the Circuit Court of Berkeley County. Holding that the term reemployed as used in the applicable statute means return to employment after having left employment. Further holding, in syllabus point 4: "The reelection of an incumbent to a consecutive term of office does not constitute reemployment under W.Va. Code 5-10-18(a). As a result, an incumbent who is reelected to a consecutive term of office is not eligible to have his or her previously forfeited credited service restored to his or her credit."

SCHMEL V. HELTON, No. 33379 (STARCHER, J.)(Albright, J., concurring in part and dissenting in part)(February 27, 2008). Affirming an order of the Circuit Court of Jefferson County that upheld an administrative ruling in favor of the tax commissioner, wherein a corporate officer and bookkeeper for a bar and restaurant business can be held liable for consumer sales taxes that were collected by the business, but not remitted to the State as required by law. Setting forth due process standards for imposition of personal liability in syllabus point 4, and requiring the person seeking to avoid liability to show by clear and convincing evidence, giving due deference to the statutory authorization for imposing liability, that it would be fundamentally unfair and an arbitrary and capricious or unreasonable act to impose such liability. Holding that the commissioner properly imposed liability under the circumstances, and further rejecting a statute of limitations argument.

NEAL v. MARION, et al., No. 33520 (BENJAMIN, J.)(June 18, 2008). Reversing an order of the Circuit Court of Kanawha County that granted summary judgment to defendants in a suit by homeowners alleging concealment of construction defects and fraudulent misrepresentations regarding the defects. Holding that dismissal of the claims against the builder under the statute of repose was improper, and clarifying application of the statute of repose in syllabus point 6: "West Virginia Code 55-2-6a (1983) sets an arbitrary time period after which no actions, whether contract or tort, seeking damages for any deficiency in the planning, design, surveying, observation or supervision of any construction or the actual construction of any improvement to real property may be initiated against architects and builders. This arbitrary time limit begins to run when the builder or architect relinquishes access and control over the construction or improvement *and* the construction or improvement is (1) occupied or (2) accepted by the owner of the real property, whichever occurs first. Pre-existing statutes of limitation for both contract and tort actions continue to operate within this outside limit. To the extent this Court's decisions in SHIRKEY v. MACKEY, 184 W. Va. 187, 399 S.E.2d 868 (1990), and GIBSON v. WEST VIRGINIA DEPARTMENT OF HIGHWAYS, 185 W. Va. 214, 406 S.E.2d 440 (1991), indicate otherwise, they are hereby modified." Further holding that the circuit court erred in applying the statute of repose to the claims involving fraud, misrepresentation and civil conspiracy.

STANLEY v. CHEVATHANARAT, No. 33666 (Per Curiam)(April 24, 2008). Affirming an order of the Circuit Court of Logan County that denied a Rule 50(a) motion for judgment on the sole issue of whether the defendant breached the standard of care by failing to obtain informed consent by not offering the alternative of hormone replacement therapy prior to performing a hysterectomy. Holding that the testimony of record was conflicting on the point and that the circuit court properly denied the motion. The jury found in favor of the defendant on all issues.

BLESSING v. NATIONAL ENGINEERING & CONTRACTING CO., et al., No. 33433 (Per Curiam)(April 25, 2008). Reversing an order of the Circuit Court of Kanawha County that granted summary judgment to the West Virginia Department of Transportation on the basis that the absence of insurance coverage precluded the plaintiff from pursuing her wrongful death action against the State under the doctrine of sovereign immunity. Holding that the record is unclear as to whether the employee at issue was solely engaged in inspection rather than construction work while working on site at the Man/Rita bridge. On remand, the scope of the employee's work should be more fully developed to determine whether the policy provides coverage. Further holding that an indemnification agreement was not the practical equivalent of insurance for purposes of the PITTSBURGH ELEVATOR analysis.

IN RE: FELA ASBESTOS CASES (MASS LITIGATION CASES CONSOLIDATED FOR APPEAL), No. 33665 (Per Curiam)(July 2, 2008). Affirming an order of the Circuit Court of Kanawha County that dismissed FELA asbestos actions filed by non-residents of West Virginia. Holding that the circuit court properly dismissed the actions under West Virginia Code 56-1-1(c)(2003), where the plaintiffs were non-residents and none of the acts giving rise to the plaintiffs' causes of action occurred in West Virginia, and there is no impediment to filing the actions in other venues.

NEELY v. BELK INCORPORATED, et al., No. 33597 (BENJAMIN, J.)(Starcher, J., and Albright, J., dissenting)(June 26, 2008). Reversing an order of the Circuit Court of Raleigh County that set aside a jury verdict in favor of the defendants and awarded a new trial after finding that the jury verdict was against the clear weight of the evidence. Holding that the circuit court abused its discretion, and that a review of the record indicates disputed facts regarding the elements of forseeability and damages, which were properly submitted to the jury and resolved in favor of the defendants. Because there was no prejudicial error in the admission of evidence or instructions provided, the circuit court erred by substituting its judgment of the credibility of the evidence for that of the jury's.

COLEMAN, et al. v. R.M. LOGGING, INC., et al., No. 33452 (Per Curiam)(June 16, 2008). Reversing an order of the Circuit Court of Fayette County that granted summary judgment to defendants in a deliberate intent wrongful death action. Holding that the grant of summary judgment was premature in that two motions relevant to whether the company had a subjective realization and appreciation of a specific unsafe working condition were unresolved. Remanded for resolution of the motions, and for an additional period of time for certain discovery, and other proceedings.

LEGG v. RASHID, No. 33521 (Per Curiam)(Davis, J., and Benjamin, J., disqualified)(Judge Charles King and Judge Gary Johnson by temporary assignment)(Albright, J., dissenting)(May 28, 2008). Affirming an order of the Circuit Court of Kanawha County that granted summary judgment to defendant on the basis that the medical malpractice complaint was filed beyond the statute of limitations period. Holding that because the treatment plaintiff received was such a failure, the plaintiff should have recognized that his condition was directly related to alleged malpractice on that day, and filed suit no less than two years later. Even assuming for the sake of argument that the plaintiff did not discover the alleged malpractice until subsequent treatment, that subsequent treatment was also more than two years prior to the filing of the complaint.

WESTMORELAND v. VAIDYA, No. 33459 (Per Curiam)(February 14, 2008). Granting mixed relief from an order of the Circuit Court of Mason County that dismissed a complaint for failure to comply with the certificate of merit requirement set forth in W.Va. Code 55-7B-6(b). When initiating suit, plaintiff relied on the exception to the certificate of merit requirement. See W.Va. Code 55-7B-6(c). The circuit court first ruled in its dismissal order that the case was subject to the certificate of merit requirement. Affirming the circuit court's determination that the case is controlled by the MPLA. Reversing and remanding for further consideration, to allow the plaintiff a reasonable amount of time to fulfill the pre-suit certificate of merit requirement prior to dismissal.

IN RE: FLOOD LITIGATION(Coal River Watershed) --AND-- IN RE: FLOOD LITIGATION (Upper Guyandotte River Watershed, Subwatershed 2a), Nos. 33664 and 33710 (Per Curiam)(Maynard, C.J., Davis, J., and Benjamin, J., disqualified)(Judge Russell M. Clawges, Jr., Judge Darrell Pratt and Judge O.C. Spaulding sitting by temporary assignment)(June 26, 2008). In cases arising from flood damage that were referred to the Mass Litigation Panel under Trial Court Rule 26, reversing the Panel judge's post-verdict order in one case, and reversing the Panel judge's dismissal order in a second case. In the Upper Guyandotte River case, holding that the Panel judge's order striking expert testimony offered by the plaintiff and setting aside a Phase I verdict returned in favor of the plaintiffs was improper, in that the expert testimony offered by the plaintiffs clearly met the liberal requirements of Rule 702 of the Rules of Evidence, was subject to testing by voir dire and cross-examination, and was properly considered by the jury. Because the weight of the evidence before the jury was not strongly against the plaintiffs, the award of a new trial was improper. Further rejecting a cross-assignment of error by the defendants below, as to whether the Phase I jury trial improperly included the issue of the reasonableness of the defendants' use of their property. Although the Phase I trial did not permit a complete range of evidence on reasonableness, such evidence could be developed in future proceedings, and a defendant's liability for damages to any plaintiff was not determined in Phase I. Because the Phase I trial was conducted in keeping with the approach approved in STATE EX REL. APPALACHIAN POWER CO. v. McQUEEN, 198 1, 479 S.E.2d 300 (1996), it does not deprive the defendants of due process. In the Coal River Watershed case, reversing the Panel judge's decision to grant the defendant's Rule 12(b)(6) motion to dismiss, there being no merit to the conclusion that the plaintiffs' complaint does not give the Coal River defendants fair notice of the asserted factual and legal basis for the claims. Remanding the matter to the Mass Litigation Panel for further proceedings.

PRUITT, et al. V. WEST VIRGINIA DEPT. of PUBLIC SAFETY, et al., No. 33526 (MAYNARD, C.J.)(June 3, 2008). Granting mixed relief from an order of the Circuit Court of Kanawha County that granted summary judgment to defendants in an action alleging various claims arising from a fatal shooting by a State Police Trooper. Holding that the circuit court properly granted summary judgment as to the federal claims, because the Department of Public Safety is not a "person" under 42 U.S.C. 1983. Further holding that the circuit court's grant of summary judgment on the state law failure to instruct and/or supervise claims was improper, in light of conflicting evidence giving rise to genuine issues of material fact. Finally holding that conflicting evidence also exists as to whether the doctrine of qualified immunity would bar a claim of negligence against the Department.

DANTZIC, et al. v. DANTZIC, et al., No. 33523 (Per Curiam)(Starcher, J., and Albright, J., concurring in part and dissenting in part)(Maynard, C.J., concurring)(June 17, 2008). Granting mixed relief from an order of the Circuit Court of Mineral County in a declaratory judgment action to construe a will. Holding that the circuit court correctly determined the effect of the will to be that the decedent died partially testate and partially intestate. Further holding that the appointment of a special appraiser to appraise nonprobate property was appropriate, but that the circuit court erred in requiring the parties to split the costs of the appraisal, where the applicable statute requires the costs to be borne by the estate.

FENTON ART GLASS CO. v. WEST VIRGINIA OFFICE INSURANCE COMMISSION and JACK L. GARRISON, No. 33673 (Per Curiam)(Starcher, J., and Albright, J., concurring on part and dissenting in part)(June 26, 2008). Granting mixed relief from orders of the Workers' Compensation Board of Review in a case involving occupational pneumoconiosis. Holding that the administrative determination regarding the non medical exposure issue was properly decided and affirmed by the Board of Review. Further holding that the Board of Review improperly substituted its judgment for the expertise of the OP Board by reversing the OP Board's determination and granting the claimant a five percent award. The Board of Review violated the statutory standard of review by failing to accord deference to the medical findings of the OP Board. Remanding for entry of an order denying the claimant relief.

SWVA, INC. v. WEST VIRGINIA OFFICE INSURANCE COMMISSION and ELMER ADKINS, JR., No. 33708 (Per Curiam)(Starcher, J., concurring)(June 26, 2008). Affirming a decision by the Workers' Compensation Board of Review that authorized use of digital hearing aids. Holding that sufficient evidence exists to establish that digital hearing aids are reasonably required for treatment under the circumstances.

WILKINSON v. WEST VIRGINIA OFFICE INSURANCE COMMISSION and PUTNAM COUNTY BD. OF ED., No. 33672 (Per Curiam)(June 23, 2008). Addressing a technically moot issue, and reversing an order of the Workers' Compensation Board of Review that upheld an administrative decision that there was no justification for adding a psychiatric condition as a compensable component of an existing claim. Holding that the Office of Judges wrongly disregarded substantial evidence of record that claimant's psychiatric condition was related to her compensable injury. Further holding that the claimant did not have the burden to prove that her psychiatric condition did not result from another major medical procedure. Finally holding that the Office of Judges wrongly disregarded two medical reports submitted by the claimant as unreliable.

LOVAS v. CONSOLIDATED COAL CO., No. 33670 (ALBRIGHT, J.)(Starcher, J., concurring)(May 23, 2008). Reversing an order of the Workers' Compensation Board of Review that affirmed an administrative closure of a nineteen percent permanent partial disability claim. Holding that the implementation of 85 CSR 1-13.1 generated the misconception that it is necessary to formally petition to reopen any claim closed administratively under the regulation, or to demonstrate an aggravation of the claimant's condition. The regulatory implementation conflicts with the intention of the Legislature, that a claim should remain open for medical benefits on an unlimited basis until it satisfies the statutory requirements for permanent closure identified in West Virginia Code 23-4-16(a)(4). Recognizing the value of an internal temporary deactivation for administrative reasons, and declaring the current regulation invalid. Requiring notice to each claimant whose claim remains active under the five-year rule to be notified that the claim has not been closed and that the standard evidence indicating that a requested authorization is medically necessary and reasonably required will justify continued action on the claim if appropriate under West Virginia Code 23-4-16(a)(4).

STATE EX REL. JEFFERSON COUNTY BOARD OF ZONING APPEALS v. WILKES, et al., No. 33500 (STARCHER, J.)(November 20, 2007). Granting a writ of prohibition to prevent enforcement of an order of the Circuit Court of Jefferson County that denied a motion to disqualify counsel. Holding that the circuit court improperly determined that each step or stage of a conditional use permit application was a separate and not substantially related matter pursuant to Rule 1.11(a) of the Rules of Professional Conduct. Holding that former counsel for the Board of Zoning Appeals was disqualified from representing a developer whose application had been under review while he was counsel for the BZA. Further holding that it was improper for the circuit court to place the burden on the BZA to recall and divulge particular confidences and instances of advice and counsel by its former attorney, because this is to be presumed where the former client establishes, as the BZA did in this instance, that the attorney is representing a client in a substantially related matter.

PREUSSAG INTERNATIONAL STEEL CORP. v. MARCH-WESTIN CO., et al., No. 33286 (STARCHER, J.)(Albright, J., concurring)(November 9, 2007). Answering a certified question from the United States District Court for the Northern District of West Virginia in a dispute over a claim against the surety bond obtained in accordance with W. Va. Code 38-2-39, relating to the construction of a new Student Recreation Center at Fairmont State College. A raw steel supplier to a custom steel fabricator sought to claim against the bond after the supplier went unpaid. Holding that the bond is available to the steel supplier, after applying a multi-factor analysis set forth in syllabus point 3: "For purposes of the public construction bond statute, W.Va. Code, 38-2- 39 [2004], a party need not necessarily perform work at the construction job site itself in order to be considered a subcontractor. To make the determination in a public construction bond case whether a party that furnishes labor or materials to the project should be classified as a subcontractor or as a materialman, a multi-factorial analysis should be used, with no single factor being determinative. The core inquiry is whether the party in question takes from the prime contractor a specific and substantial part of the labor or material requirements of the original contract, thus excluding ordinary laborers and materialmen."

T & R TRUCKING, INC. v. MAYNARD; FARLEY, Appellant, No. 33346 (Per Curiam)(November 21, 2007). Granting mixed relief from an order of the Circuit Court of Wayne County entered following a jury verdict favorable to the appellee on a counterclaim in a breach of contract action. Holding that the circuit court properly excluded evidence regarding the fact that appellee did not have a driver's license or coal truck driver certification at the time the contract was executed. Further holding that the circuit court erred in denying a motion for judgment as a matter of law with regard to a claim against the trucking company president individually, as there was no evidence presented to support piercing the corporate veil, and the verdict form should have reflected that. Remanded with directions.

CAPERTON, et al. v. A.T. MASSEY COAL CO., et al., No. 33350 (DAVIS, C.J.)(Starcher, J., dissenting)(Albright, J., dissenting)(Benjamin, J., concurring)(November 21, 2007). Reversing a jury verdict obtained following a lengthy trial in the Circuit Court of Boone County. Holding that the circuit court erred in failing to grant a motion to dismiss based upon the existence of a forum selection clause in a contract directly related to the dispute at issue. Setting forth extensive guidance for construing and applying a forum selection clause, both to signatories and non-signatories. Further holding that res judicata is an independent basis for reversal, due to an earlier action litigated in Virginia.

NOTE: This summary is provided for informational purposes only. On January 24, 2008 the Court granted a petition for rehearing in this action. (Maynard, C.J., disqualified)(Cookman, Judge, by temporary assignment).

STATE v. ERIC ALLEN FOSTER, No. 33323 (Per Curiam)(Benjamin, J., disqualified)(Moats, Judge, by temporary assignment)(November 19, 2007)(Rehearing denied, January 10, 2008). Affirming an order of the Circuit Court of Nicholas County imposing two consecutive forty-year sentences upon jury conviction for two counts of second degree murder. Rejecting assertions that there was insufficient evidence of intent. Further holding that certain jury instructions and selection of certain jurors did not constitute plain error, and that there was no per se ineffective assistance of counsel.

STATE EX REL. FREDERICO HATCHER v. McBRIDE, Warden, No. 33244 (Per Curiam)(November 9, 2007). Affirming an order of the Circuit Court of Cabell County that denied a post-conviction habeas corpus petition. Holding that the 212 year sentence for a single count of aggravated robbery was within statutory limits and that the circuit court properly took into account the defendant's extensive and escalating criminal history. Deeming the defendant's skeletal argument regarding ineffective assistance of habeas counsel to have been waived, given the absence of supporting arguments or authority.

STATE ex rel. NELSON, Prosecuting Attorney v. FRYE, No. 33499 (Per Curiam)(November 8, 2007). Denying a writ of prohibition sought to prevent dismissal of negligent homicide charges following a logging truck accident that resulted in the death of another driver. Holding that where the evidence showed that the truck driver was in excess of the recommended speed, but not over the speed limit, there was insufficient evidence of reckless disregard to sustain the charges.

STATE v. JONATHON FREEMONT RAY, No. 33324 (BENJAMIN, J.)(Starcher, J., concurring)(Albright, J., concurring)(November 8, 2007). Affirming sentences upon multiple convictions for sexual assault, incest and other sex-based offenses imposed by the Circuit Court of Preston County. Rejecting defendant's assertion that consanguinity is an element of the offense of incest, and holding that the statutory definition of incest is met where the victims were stepchildren of the defendant's biological brother. Further rejecting the assertion that double jeopardy prevents convictions for sexual assault and incest arising from the same incident. Applying the Blockburger test to determine that each offense requires a separate element to be proven.

STATE v. KENNETH RAY COLLLINS, No. 33300 (Per Curiam). Affirming a conviction and sentence imposed by the Circuit Court of Mingo County upon conviction for one count of sexual abuse in the third degree and one count of sexual abuse by a parent, guardian or custodian. Holding that the record ñ- including evidence that the defendant "controlled and supervised the eleven year old girl on numerous, albeit temporary, occasions when he would take her away from home to go riding on his four-wheeler" -- reveals a sufficient basis for the jury to conclude that the defendant met the statutory definition of custodian.

STATE v. DANIEL B. BINGMAN, No. 33299 (Per Curiam)(Starcher, J., dissenting)(Albright, J., dissenting)(October 26, 2007). Affirming a conviction and sentence imposed by the Circuit Court of Gilmer County upon conviction for one count of petit larceny in violation of W. Va. Code 61-3-13(b). The indictment for grand larceny occurred more than one year after the offense. Holding that defense counsel failed to object to jury instructions on the lesser-included offense, thereby waiving any statute of limitations defense that could be asserted, in accord with rule announced in syllabus point 3 of STATE v. BOYD, 209 W. Va. 90, 543 S.E.2d 647 (2000).

STATE EX REL. TERRON GODFREY v. ROWE, No. 33444 (Per Curiam)(Davis, C.J., concurring in part and dissenting in part)(October 16, 2007). Granting a moulded writ of prohibition to prevent enforcement of an order imposing jury costs on defense counsel following a mistrial. Holding that the trial court properly rejected defendant's assertion that the second trial was barred by double jeopardy. Further denying as premature relief sought in relation to a motion to join counts of a subsequent indictment and directing the circuit court to address the joinder motion.

STATE v. RICHARD ALLEN HAINES, No. 33304 (Per Curiam)(October 12, 2007). Affirming an order of the Circuit Court of Hampshire County that imposed sentence upon a jury conviction for one count of felony delivery of a Schedule II controlled substance. Rejecting appellant's contention that the trial court erred in amending the indictment, which had erroneously identified methamphetamine as a Schedule I controlled substance. Holding that the trial court properly concluded that the amendment was not substantial and did not require resubmission to the grand jury in light of the fact that the appellant was not misled, there was no additional burden of proof, and he was not prejudiced as a result of the amendment.

STATE v. THOMAS JOSEPH MACPHEE, No. 33297 (Per Curiam)(Maynard, J., concurring)(October 12, 2007). Affirming an order of the Circuit Court of McDowell County that imposed a life sentence with mercy following a jury conviction for felony murder. Rejecting appellant's argument that he was merely an accessory after the fact. Holding that the evidence was sufficient to sustain the conviction.

STATE EX REL. SHANE SHELTON v. PAINTER, Warden, No. 33322 (Per Curiam)(Maynard, J., concurring in part and dissenting in part)(Benjamin, J., concurring in part and dissenting in part)(November 21, 2007). Granting mixed relief from an order of the Circuit Court of Ohio County that denied a post-conviction habeas corpus petition after conducting an evidentiary hearing. After testifying at trial and admitting that he shot the victim, Shelton was convicted of first degree murder without mercy. Reviewing the single issue of ineffective assistance of counsel at trial, and holding that defense counsel betrayed his duty of loyalty to his client during closing argument by equivocating about whether his client deserved mercy, by failing to introduce any evidence in support of mercy, and by failing to make any meaningful plea for mercy, especially when combined with counsel's over-emphasis of his client's obvious guilt. Declining to remand for new trial on the issue of guilt, and requiring a limited new trial only on the penalty issue of whether Shelton should or should not receive mercy.

STATE v. KENNETH BOOKHEIMER and STATE v. JESSICA TINGLER, Nos. 33289 and 33290 (Per Curiam)(Starcher, J., concurring)(Maynard, J., dissenting)(Albright, J., concurring)(Benjamin, J., dissenting)(November 8, 2007)(Rehearing denied, January 10, 2008). Reversing orders of the Circuit Court of Braxton County that imposed sentences on convictions of conspiracy and operating a clandestine drug laboratory. Holding that the circuit court erred by allowing introduction of evidence seized as the result of an illegal search. Holding that agitated behavior by a resident upon the officer's arrival after receipt of a call regarding a domestic dispute did not create an emergency or exigent circumstance justifying warrantless entry into the mobile home. Neither party consented, officers were asked to leave, and there was no indication that a protective sweep was warranted or justified. Remanded for a new trial.

STATE v. DAVID NELSON, No. 33188. (Per Curiam)(Maynard, J., dissenting)(Starcher, J., concurring)(October 30, 2007). Reversing jury convictions of six felony offenses related to the death of Wanda Lesher, upon which the defendant had been sentenced to two terms of life without mercy, among other sentences to be served consecutively, on the basis that the defendant was denied a fair trial. Where defendant relied upon an alibi defense and testified at trial, it was error to permit the State on cross-examination to raise alleged acts of past misconduct that were unverified, inflammatory and not subjected to the requirements of Rule 404(b). The alleged acts were also not admissible in the context of rebuttal upon the issue of character.

STATE v. DANNY L. CECIL, No. 33298 (Per Curiam)(Maynard, J., dissenting)(November 21, 2007). Reversing an order of the Circuit Court of Putnam County imposing sentence upon jury convictions for multiple sex crimes. Rejecting several trial errors, including an assertion that the trial court improperly limited a defense expert with statistical evidence tending to undermine the veracity of assertions of sexual abuse victims. Reversing and remanding for a new trial in light of multiple instances of juror misconduct including investigation extrinsic to the deliberation process and one juror who contradicted the court's instructions on the weight to be given to testimony of witnesses. Remanded for new trial.

STATE v. WILLIAM MILLS, JR., No. 33340 (Per Curiam)(October 25, 2007). Affirming an order of the Circuit Court of Kanawha County that imposed sentence upon a jury conviction for delivery of a controlled substance. Rejecting appellant's contention that the trial court erred in refusing to strike a juror for cause. The juror was in uniform as a medic for county emergency services and also served on a volunteer fire department with a potential state witness. Concluding that the appellant failed to demonstrate a disqualifying social relationship, and further failed to specifically inquire as to the nature of the juror's relationships with law enforcement officials, and that the juror was very clear about being able to remain impartial.

CHRISTOPHER LEE DAVIS v. McBRIDE, No. 33199 (Per Curiam)(October 12, 2007). Affirming an order of the Circuit Court of Kanawha County that denied a request for post-conviction habeas corpus relief. Affirming the circuit court's conclusion that the State had a legitimate non-discriminatory reason for using a peremptory strike to exclude the only African-American from the jury panel.

POWELL v. PAINE, State Superintendent, No. 33325 (Per Curiam)(Starcher, J., concurring)(Benjamin, J., concurring)(November 21, 2007). Reversing an order of the Circuit Court of Kanawha County that affirmed a decision by the State Board of Education that imposed a four-year suspension on a high school teacher who had been disciplined but not dismissed by the county school board. Teacher was subject to DHHR proceedings and pled guilty to domestic battery after beating his nine-year old son with a belt. Holding that the applicable statute requires proof of unfitness to teach and a rational nexus, neither of which were demonstrated by clear and convincing evidence or supported by the state board's decision. "Absent evidence of any ill-effects on his ability to teach, appellant has complied with the redemptive measures established in our society to rehabilitate his behavior and we find no reason why appellant should not be permitted to resume his teaching career without further delay."

WETZEL v. EMPLOYERS SERVICE CORP. OF AMERICA, No. 33337 (Per Curiam)(Starcher, J., concurring in part and dissenting in part)(Albright, J., dissenting)(Maynard, J., concurring)(November 8, 2007). Affirming an order of the Circuit Court of Marshall County that granted summary judgment in favor of defendant below, ESC, a third-party administrator for a workers' compensation program. Holding that ESC, as an agent of the employer, is immune from common law actions pursuant to statutory immunity. Further holding that ESC is not subject to an allegation of statutory bad faith because it is not engaged in the business of insurance for purposes of the UTPA.

FRYMIER v. GLENVILLE STATE COLLEGE, Nos. 32163 and 33296 (Per Curiam)(Starcher, J., dissenting)(Maynard, J., concurring)(Albright, J., dissenting)(October 12, 2007). Affirming orders of the Circuit Court of Gilmer County in a grievance appeal. Holding that the circuit court correctly determined that Ms. Frymier was not entitled to bumping rights under West Virginia Code 18B-7-1 and further that Glenville State College did not make its job retention decision based on favoritism. Holding that West Virginia Code 18B-7-1 does not apply because there was no reduction in work force through either termination or temporary furlough. Further holding that any difference in treatment was purely related to actual job responsibilities, and therefore Ms. Frymier was not the victim of favoritism.

COLGAN AIR, INC. v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and RAO ZAHID KHAN, No. 33355 (Per Curiam)(Starcher, J., concurring in part and dissenting in part)(Maynard, J., concurring)(Albright, J., concurring in part and dissenting in part)(October 25, 2007). Reversing an order of the Human Rights Commission finding liability for harassment and discrimination, after an administrative law judge found no discrimination. Holding that the HRC erred by imposing liability upon Colgan, where the company took appropriate and decisive action as soon as policy was followed and management was informed of the discriminatory conduct. Further holding that the HRC erred in concluding that Colgan Air failed to prove a legitimate non discriminatory reason for the termination, in light of clear evidence of inability to safely maneuver an airplane.

LANDIS v. LANDIS, No. 33333 (Per Curiam)(November 8, 2007). Reversing an order of the Circuit Court of Raleigh County that denied a request for attorney's fees and expert witness costs exceeding $300,000 in a divorce proceeding. Holding that the lower courts erred in relying solely on the appellant's ability to pay. After considering the entire record, concluding that there is substantial merit in the assertion that the appellee's intransigence increased the cost of litigation, and ordering the appellee to be responsible for one-half of all the appellant's attorney and expert witness fees and costs.

HELFER v. HELFER, No. 33348 (Per Curiam)(November 8, 2007)(Rehearing denied, January 10, 2008). Reversing an order of the Circuit Court of Ohio County that denied a petition for appeal from a family court order regarding equitable distribution. Holding that the family court in failing to take into account the intangible asset of enterprise goodwill in the chiropractic practice. Remanding for further proceedings.

IN RE: VISITATION AND CUSTODY OF SENTURI N.S.V, No. 33334 (Per Curiam)(October 25, 2007). Reversing an order of the Circuit Court of Cabell County that affirmed a family court ruling that the appellees, who sometimes cared for the child, were psychological co-parents of the minor child and had a shared parenting arrangement with the mother. Holding that simply caring for a child is not enough to bestow upon a care giver psychological parent status. Further commenting on the lower courts' complete and utter disregard of the mother's parental rights, remanding for restoration of full custodial rights.

IN RE: CESAR L., No. 33317 (DAVIS, C.J.)(Starcher, J., concurring in part and dissenting in part)(Albright, J., concurring in part and dissenting in part)(Benjamin, J., concurring)(October 24, 2007). Affirming orders of the Circuit Court of Berkeley County that:(1) determined a mother lacked standing to request a modification of disposition under W. Va. Code 49-6-6 because she had voluntarily relinquished her parental rights; and (2) found that the mother's relinquishment was voluntary and free of fraud and duress and was therefore a valid voluntary relinquishment under W. Va. Code 49-6-7. Setting forth six new syllabus points, and holding that voluntary relinquishment acts as a complete forfeiture of parental status.

ADKINS v. ADKINS, No. 33312 (ALBRIGHT, J.)(November 8, 2007). Granting mixed relief from an order of the Family Court of Cabell County, in a direct appeal from family court. In syllabus points 3 through 8, setting forth significant guidance for determining the support obligation of an incarcerated person, including a determination that this obligation should be set in light of that person's actual earnings while incarcerated and other assets practically available to provide support.

CHILD SUPPORT ENF. DIV. and VARNEY v. VARNEY, No. 33332 (Per Curiam)(Maynard, J., disqualified)(Janes, Judge, by temporary assignment)(November 21, 2007). Reversing an order of the Circuit Court of Mingo County that denied an appeal from a family court order that determined the statute of limitations applies to bar a suit to enforce a decretal judgment for alimony arrearages. Holding that because a writ of execution was issued within the ten-year statute of limitations attached to the decretal judgment, the statute began to run anew from the return day of the execution.

FOSTER v. FOSTER, No. 33301 (Per Curiam)(November 20, 2007). Reversing an order of the Circuit Court of Raleigh County that determined that a petition to recover overpayment of just under $3,500 in child support was filed outside the statute of limitations. Declining to reverse on grounds asserted, instead applying the equitable doctrine of unclean hands to preclude recovery, where the appellee was previously able to avoid paying over $30,000 in child support by successfully asserting that the appellant was barred from collecting on the decretal judgment that was more than ten years old.

WASHINGTON v. WASHINGTON, No. 32980 (Per Curiam)(October 26, 2007). Affirming an order of the Circuit Court of Harrison County that refused a family court appeal on the basis of having been untimely filed. Holding that the circuit court properly raised, sua sponte, the timeliness of the appeal, which was filed one day beyond the thirty-day deadline. Although an opinion letter was late in being made a part of the official court file, the litigant had the letter in his possession, so the letter's late arrival to the court record had no impact on the ability to timely file an appeal. Finding no evidence that the pro se party, who later obtained counsel, was improperly hindered in exercising his right to access the courts.

PLUMLEY v. WEST VIRGINIA DEPT. of HEALTH and HUMAN RESOURCES/OFFICE of HEALTH FACILITY LICENSURE and CERTIFICATION, No. 33287 (BENJAMIN, J.)(Starcher, J., dissenting)(Maynard, J., concurring)(Albright, J., dissenting)(October 12, 2007). Reversing an order of the Circuit Court of Cabell County that reversed an administrative order requiring closure of a "legally unlicensed health care home" as defined in West Virginia Code of State Rules 64-50-2.6. Holding that a conviction for felony incest, as revealed by a CIB background check, is sufficient to trigger a regulatory bar on operating such a health care home, because the conviction constitutes a crime relevant for the provision of care to a dependent population within the scope of W. Va. C.S.R. 64-50-4.4 (1999).

KEEFER v. FERRELL; FARM FAMILY CASUALTY CO., Appellant, No. 33310 (Per Curiam)(Starcher, J., concurring)(Benjamin, J., dissenting)(November 8, 2007). Affirming an order of the Circuit Court of Mason County that found insurance coverage to exist under an automobile policy that covered a truck being approached by a tractor for loading onto a trailer attached to the truck. Holding that the factual circumstances establish "use" of the vehicle for purpose of coverage.

REED v. ORME, No. 33291 (Per Curiam)(Starcher, J., dissenting)(Albright, J., dissenting)(November 8, 2007). Affirming an order of the Circuit Court of Logan County that determined that no insurance coverage existed under a Board of Education policy to cover injuries sustained by a bus driver in an accident, where the bus driver collected workers' compensation benefits. Holding that the circuit court properly determined that this was a custom-designed policy such that the workers' compensation exclusion could apply.

STRUM, et al. v. SWANSON, No. 33285 (ALBRIGHT, J.)(October 26, 2007). Reversing an order of the Circuit Court of Tyler County that granted summary judgment to the plaintiffs in an underinsured motorist claim. Construing statutory language and adopting the majority view in the nation by holding that: "The West Virginia wrongful death statute, West Virginia Code 55-7-5 (1931) (Repl. Vol. 2000), does not support a cause of action seeking benefits through a claimant's personal UIM insurance policy, where that claimant is acting in his or her legal capacity as a personal representative of an estate and the decedent was not insured under the UIM policy at issue." Syl. Pt. 5.

STATE EX REL. REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY v. COUNTY COMMISSION OF CABELL COUNTY, et al., No. 33347 (ALBRIGHT, J.)(Starcher, J., concurring)(November 21, 2007)(Rehearing denied, January 10, 2008). Granting a moulded writ of mandamus in a dispute over payments by a county commission to the regional jail authority to cover the daily cost of housing county inmates. Addressing the Court's authority to issue moulded writ relief in cases having statewide impact and affecting the public interest, and holding that the county commission is obligated to pay assessed per diem charges, but that the regional jail authority must promptly meet and formulate a proposed legislative rule as provided for by W. Va. Code 31-20-10(h), addressing issues of uniformity, calculation of the per diem rate, and further clarifying the documentation surrounding any future rate increases.

STATE EX REL. BAKER v. BOLYARD, Dir. Div. Motor Vehicles, No. 33303 (BENJAMIN, J.)(Starcher, J., dissenting)(Maynard, J., concurring)(October 30, 2007). Affirming an order of the Circuit Court of Greenbrier County that affirmed an administrative decision imposing a six-month driver's license revocation on December 9, 2005, upon receipt of a notification for magistrate court that the defendant entered a nolo contendere plea to first offense DUI. The fact that the plea took place between the Court's prior decision in STATE EX REL STUMP v. JOHNSON, 217 W.Va. 733, 619 S.E.2d 246 (2005) and the May 15, 2006 amendment to W. Va. C.S.R. 91-5-14.1 means that the revocation was automatic upon notification of the nolo contendere plea.

STATE EX REL. CITY OF CHARLES TOWN v. COUNTY COMMISSION OF JEFFERSON COUNTY, et al., Nos. 33454, 33455, 33456 and 33457 (Per Curiam)(Starcher, J., concurring in part and dissenting in part)(Albright, J., concurring)(Benjamin, J., concurring)(October 26, 2007). Granting petition for writ of mandamus to compel the county commission to approve an annexation order presented by a municipality pursuant to W. Va. Code 8-6-4. Holding that the language of the statute clearly and unambiguously requires a county commission to enter an annexation order when a municipality certifies that the annexation petition is sufficient, and that the commission has no independent duty to determine whether or not the annexation complies with the applicable statutes.

LAWYER DISCIPLINARY BOARD v. CANDACE K. CALHOUN, No. 33067 (Per Curiam). Imposing indefinite suspension of license to practice law pursuant to the reciprocal discipline provisions of Rule 3.20 of the Rules of Lawyer Disciplinary Procedure, after a final order was entered suspending Candace Calhoun from the practice of law in that state. Holding that none of the Rule 3.20(e) exceptions exist that would prevent imposing the same discipline as the foreign jurisdiction.

MORTON v. UNKNOWN HEIRS OF VAN CAMP, et al., LINDA KESSLER ARCHER, Appellant, No. 33341 (Per Curiam)(Starcher, J., dissenting)(Albright, J., dissenting)(Benjamin, J., concurring). Affirming an order of the Circuit Court of Kanawha County that directed the sale of property wherein the appellant owns an undivided one-seventh interest. Holding that the circuit court was correct because the property cannot be conveniently partitioned in kind, the interests of the majority of the property owners will be promoted by a sale and the interests of the appellant will not be prejudiced as she will receive one-seventh of the proceeds.

AMERICAN CANADIAN EXPEDITIONS, LTD. V. THE GAULEY RIVER CORPORATION, et al., No. 33246 (ALBRIGHT, J.)(November 21, 2007). Affirming an order of the Circuit Court of Fayette County that granted summary judgment to landowners, after determining that the appellant did not have an equitable or legal right to seek damages for timber removed from property during the time appellant held an option to purchase the land. "During the option period of a real estate option contract, the optionee has no ownership interest in the property, or the timber on it, absent specific language in the option contract to the contrary." Syl. Pt. 5. "The basic enforceable personal rights of the holder of an option to purchase real estate include the right to purchase the property at a certain price within a prescribed period. As with any contract, additional terms and conditions may be negotiated by the parties and enforcement of those terms and conditions would be governed by contract law." Syl. Pt. 6. Although as with any contract, additional terms and conditions could be negotiated and subsequently governed by contract law, no such conditions were applicable.

CANTLEY, et al. v. LINCOLN COUNTY COMMISSION, No. 33345 (Per Curiam)(November 8, 2007). Reversing an order of the Circuit Court of Lincoln County that granted a 12(b)(6) motion to dismiss the Lincoln County Commission in an action seeking recovery for flood damages incurred because of the commission's alleged failure to take flood control measures on the Mud River. Holding that dismissal was inappropriate given the allegations of the complaint, which, in this context, must be taken as true, namely that the commission has a duty to maintain the river and failed in that duty despite repeated warnings.

FOLIO v. CITY OF CLARSKBURG -AND- GRANDEOTTO, INC. v. CITY OF CLARKSBURG, Nos. 33295 and 33302 (Per Curiam)(Benjamin, J., dissenting)(November 9, 2007). Reversing orders of the Circuit Court of Harrison County involving a dispute over the sale of property to the City of Clarksburg and right-of-way interests, where the circuit court granted summary judgment in favor of the City. Holding that the circuit court properly determined that agreements were ambiguous and inadequate to convey certain rights-of-way, and that even if valid, the rights-of-way were extinguished based upon the doctrine of merger. Nevertheless holding that summary judgment was premature because a genuine issue of material fact exists regarding whether an easement was created by equitable estoppel as a result of representations made by the City at the time of the conveyance. Further holding that summary judgment was premature with regard to the claim of negligent misrepresentation. Remanding for further proceedings.

PARKER v. ESTATE OF BEALER, et al., No. 33339 (Per Curiam)(November 21, 2007)(Rehearing denied, January 10, 2008). Reversing an order of the Circuit Court of Hampshire County, and holding that the appellant estate should have been granted summary judgment in a dispute over the status of a Hampshire County farm. Applying Florida law to conclude that there was a mistake in the formation of a charitable trust intended to hold the farm; the trust was intended to preserve the farm, but the appellant was wrongly advised regarding the five percent distribution rule applicable to charitable trusts, which, if applied, would not have preserved the farm as intended. In light of the mistake in the trust's formation, the farm not a part of the trust.

ROBERTS v. WEST VIRGINIA AMERCIAN WATER CO., et al., No. 33326 (ALBRIGHT, J.)(Starcher, J., dissenting)(November 8, 2007). Affirming an order of the Circuit Court of Kanawha County that granted summary judgment to defendants on statute of limitations grounds in a property damage action. Holding that neither the discovery rule nor the continuous tort doctrine tolled the statute of limitations, where the plaintiff claimed damages for the single, discrete act of constructing and installing the waterline and not for any continuing malfunction of the waterline or further misconduct by the defendants. Holding in syllabus point 4: "The distinguishing aspect of a continuing tort with respect to negligence actions is continuing tortious conduct, that is, a continuing violation of a duty owed the person alleging injury, rather than continuing damages emanating from a discrete tortious act."

BLANKENSHIP, et al. v. ETHICON, Inc., et al., No. 33224 (DAVIS, C.J.)(Starcher, J., concurring in part and dissenting in part)(Benjamin, J., concurring)(October 12, 2007). Granting mixed relief from an order of the Circuit Court of Kanawha County that dismissed an action alleging damages from implantation of contaminated sutures, upon the circuit court's determination that the plaintiffs failed to comply with the pre-suit requirements of the Medical Professional Liability Act. Holding, in syllabus point 4, that: "The failure to plead a claim as governed by the Medical Professional Liability Act, W.[integral]Va. Code 55-7B-1, et seq., does not preclude application of the Act. Where the alleged tortious acts or omissions are committed by a health care provider within the context of the rendering of 'health care' as defined by W.[integral]Va. Code 55-7B-2(e) (2006) (Supp. 2007), the Act applies regardless of how the claims have been pled." Further holding that dismissal was too harsh a sanction, and remanding to allow the plaintiffs to amend their complaint and otherwise comply with the MPLA.

HIGHMARK WEST VIRGINIA v. JAMIE, No. 33309 (Per Curiam)(November 20, 2007). Granting mixed relief from an order of the Circuit Court of Wood County that dismissed a second amended counterclaim pursuant to Rule 12(b)(6), in a dispute between a physician and an insurer over certain billing items and alleged overpayments. Holding that the circuit court properly dismissed several counts, but that the circuit court erred in dismissing three counts in the nature of breach of contract claims, and a fraud count, and remanding for further proceedings.

SAN FRANCISCO v. WENDY'S INTERNATIONAL, INC., No. 33284 (STARCHER, J.)(Davis, C.J., concurring)(Benjamin, J., dissenting)(November 21, 2007). Reversing an order of the Circuit Court of Kanawha County that granted summary judgment to defendant in a case alleging food poisoning. Holding that the circuit court improperly excluded the testimony of two experts. "Because the summary judgment process does not conform well to the discipline and analysis that DAUBERT v. MERRELL DOW PHARMACEUTICALS, INC., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and WILT v. BURACKER, 191 W.Va. 39, 443 S.E.2d 196 (1993) impose, the Daubert/Wilt regime should be employed only with great care and circumspection at the summary judgment stage. Courts must be cautious - except when defects are obvious on the face of a proffered expert opinion - not to exclude debatable scientific evidence without affording the proponent of the evidence adequate opportunity to defend its admissibility. Given the plain language of the West Virginia Rules of Evidence, the side trying to defend the admission of expert evidence must be given an adequate chance to do so." Syl. Pt. 4. Further holding that a medical opinion based upon a properly performed differential diagnosis may satisfy the reliability prong of Rule 702, and that such opinions should be analyzed on a case-by-case basis.

STATE EX REL. JONES, et al. v. RECHT, et al., No. 33383 (Per Curiam)(Davis, C.J., concurring)(Benjamin, J., concurring)(November 8, 2007). Granting a moulded writ to prevent enforcement of an order of the Circuit Court of Ohio County that excluded certain medical expert testimony in a personal injury action. The circuit court held that a neurosurgeon's testimony regarding the biomechanical elements of the accident were enmeshed to the point where the expert must be excluded. Holding that the expert's testimony could have been strictly limited to medical testimony, and the issues regarding force of impact be redirected to experts qualified in biomechanics or accident reconstruction.

GIBSON v. LITTLE GENERAL STORES, INC., No. 33313 (Per Curiam)(November 8, 2007). Affirming an order of the Circuit Court of Greenbrier County that granted summary judgment to the defendant in an action alleging damages from a malfunctioning gas pump. Holding that the circuit court properly granted summary judgment where the plaintiff was unable to produce expert testimony regarding pump malfunction and there was no allegation of res ipsa loquitur in the complaint.

WALKER v. SHARMA, No. 33308 (ALBRIGHT, J.)(Davis, C.J., concurring)(Benjamin, J., dissenting)(November 8, 2007). Reversing an order of the Circuit Court of Cabell County that granted judgment as a matter of law to the defendant after determining that the plaintiff's expert could not testify as to the national standard of care because he was unfamiliar with the specific method to dilate urethral strictures at hospitals not located in Columbus, Ohio, where he practices. Holding that the trial court erred in determining that an experienced, board-certified urologist could not testify as to the applicable standard of care. Clarifying the weight and admissibility of expert testimony in such cases in syllabus points 3 and 4: "Following a trial court's decision that a physician is qualified to offer expert testimony in a given field, issues that arise as to the physician's personal use of a specific technique or procedure to which he or she seeks to offer expert testimony go only to the weight to be attached to that testimony and not to its admissibility." Syl. Pt. 3. "Where there are several approved methods of performing a particular medical procedure, the fact that a physician who is qualified to offer an expert opinion based on field of practice and expertise utilizes a different method than the doctor whose actions are at issue does not prevent the physician from offering testimony on the applicable standard of care in a medical malpractice case." Syl. Pt. 4.

KELLEY, et al. v. THE CITY OF WILLIAMSON, et al., No. 33311 (Per Curiam)(Davis, C.J., dissenting)(Benjamin, J., dissenting)(November 21, 2007). Reversing an order of the Circuit Court of Mingo County that granted summary judgment to the City and a police officer in an action by citizens who had been arrested and who alleged outrage, battery, false swearing, negligent hiring and intentional infliction of emotional distress. Holding that the circuit court erred in granting summary judgment because factual disputes exist regarding the statutory threshold immunity questions, and the jury should decide the issue of negligence under W. Va. Code 29-12A-4(c)(2) and bad faith, etc. under W. Va. Code 29-12A-5(b).

ZIRKLE v. ELKINS ROAD PUBLIC SERVICE DISTRICT, No. 33307 (Per Curiam)(November 15, 2007). Affirming an order of the Circuit Court of Upshur County that dismissed an action against the public service district for failure to state a cognizable claim under the West Virginia Tort Claims and Insurance Reform Act. Concluding that the allegations were based on intentional acts that were related to the PSD's licensing and permitting functions. Such acts are included in W. Va. Code 29-12A-5(a)(9), and when read in concert with the provisions of W. Va. Code 29-12A-4(b)(1), the PSD has immunity in this case.

BROWN v. CITY OF FAIRMONT, et al., No. 33354 (Per Curiam)(November 21, 2007). Granting mixed relief from an order of the Circuit Court of Marion County that granted summary judgment for defendants in an action alleging improper distribution of a fireman's pension to the fireman's ex-wife. Holding that distribution of proceeds to alternate payee prior to retirement was improper because clear statutory requirements had not been met. Affirming the circuit court's determination with regard to allegations of breach of fiduciary duty and related claims.

CANTERBURY v. LAIRD, Sheriff, et al., No. 33132 (Per Curiam)(November 21, 2007). Affirming an order of the Circuit Court of Fayette County that granted summary judgment to defendants. Holding that the false arrest claim was filed outside the statute of limitations, even if the limitations period was tolled by ongoing criminal proceedings. Further holding that an error regarding the malicious prosecution claim was waived because it was argued in the brief, but not assigned as error in the petition for appeal.

RIGGS v. WEST VIRGINIA UNIVERSITY HOSP., Inc., No. 33335 (Per Curiam)(Davis, C.J., concurring)(Starcher, J., dissenting)(Albright, J., dissenting)(November 20, 2007). Affirming an order of the Circuit Court of Monongalia County that reduced a $10 million non-economic damages award to $1 million in accordance with W. Va. Code 55-7B-8. Rejecting appellant's assertion that the MPLA cap should not apply because the claims arise from the hospital's failure to control an infectious outbreak, not from health care rendered to a patient. In light of the fact that the case was pled and tried as an MPLA case, applying judicial estoppel to conclude that the appellant may not change the theory of the case after the return of the jury's verdict in order to avoid the application of the MPLA's non-economic damages cap.

STATE EX REL. CHEMTALL INC., et al. v. MADDEN, et al., No. 33380 (Per Curiam)(November 15, 2007). Denying a writ of prohibition sought by defendants to prevent enforcement of an order permitting a water treatment worker to intervene in a toxic exposure action involving coal treatment plant workers. Holding that intervention was not precluded by the Court's prior opinion in this matter, and that the challenge is also premature. Further rejecting a constitutional challenge to the bifurcated trial plan, stating that "a decision on the constitutionality of punitive damages at this point would amount to nothing more than an exercise in speculation." Further declining to address the claim that punitive damages are not available in cases in which only medical monitoring damages are sought because appellate review is better left to a review of the verdict after complete development of all the facts and testimony.

STATE EX REL. PACKARD v. PERRY, No. 33214 (BENJAMIN, J.)(Maynard, J., disqualified)(Egnor, Judge, by temporary assignment)(November 21, 2007). Granting a moulded writ of prohibition to prevent enforcement of orders of the Circuit Court of Logan County. Holding that the circuit court properly denied leave to amend the complaint. Further holding that the circuit court erred in determining that only the petitioner, through an independent action, may seek recovery for pre-majority medical expenses incurred in the treatment of her son during alleged malpractice. "The right to maintain an action to recover pre-majority medical expenses incurred as a result of a minor's personal injuries belongs to both the minor and the minor's parents, but under no circumstances will double recovery be allowed. Thus, a procedural bar that prevents the parents from maintaining an action will not affect their minor child's right to recover. To the extent that MCCALLAM v. HOPE NATURAL GAS, 93 W.Va. 426, 117 S.E. 148 (1923); BARKER v. SAUNDERS, 116 W.Va. 548, 182 S.E. 289 (1935); GLOVER v. NARICK, 184 W.Va. 381, 400 S.E.2d 816 (1990), and other cases are inconsistent with this holding, they are overruled."

Throughout the day, I'll be posting the summaries of all 58 opinions issued in the September 2007 term of court. All told, there were 42 per curiam opinions and 16 signed opinions.

The first six opinions of the September 2007 term of court were released today, and are available at this link.

Summaries of all 62 opinions issued in the January 2007 term of court are now posted. The summaries are in three groups. Issue 91, posted on March 2, 2007, contains summaries of the first ten opinions of the term. Issue #92, posted August 22, contains summaries of 45 opinions. Finally, Issue #93, posted August 28, contains seven opinion summaries that were inadvertently omitted from Issue #92.

The opinion summaries are also available on three general category pages: Civil, Criminal, and Family.

The first court day of the September term will take place on September 11th, with a Motion Docket and Argument Docket. Most of the dockets and briefs are now posted on the September calendar page.

STATE v. BRIAN DANIEL MURRAY, No. 33193 (Per Curiam)(Davis, C.J., dissenting)(Maynard, J., dissenting)(Benjamin, J., concurring)(June 5, 2007). Defendant appealed following jury conviction in the Circuit Court of Morgan County for the offenses of failing to render aid at an automobile accident involving death and failure to maintain control of his vehicle. Applying plain error analysis to conclude that the prosecution improperly commented on the defendant's failure to testify.

WEST VIRGINIA UNIVERSITY BD. Of GOVERNORS, et al. v. WEST VIRGINIA HIGHER EDUCATION POLICY COMM'N, No. 33208 (ALBRIGHT, J.)(May 24, 2007). Reversing an order of the Kanawha County Circuit Court that granted summary judgment to the Policy Commission and allowed the Commission to exercise authority to require all higher education classified employees to be paid at or above the "zero step" for their pay grade on the salary schedule set forth in WV Code 18B-9-3. Conducting an analysis of the relevant statutes and regulations, and reversing. Holding that the WVU Board of Governors has authority to establish a uniform and equitable salary policy for its classified staff that cannot be overridden by the Commission.

BLACK, et al. v. CSX TRANSPORTATION, INC., No. 33218 (Per Curiam)(Starcher, J., concurring)(Benjamin, J., dissenting)(June 6, 2007). Reversing an order of the Circuit Court of Kanawha County that denied a motion for new trial and entered judgment for the defendant below. Holding that the trial court erred in failing to strike a juror for cause, where the juror conveyed a bias against parties claiming to have been injured by exposure to asbestos and against personal injury attorneys. Remanded for new trial.

GENERAL MOTORS ACCEPTANCE CORPORATION v. D.C. WRECKER SERVICE, et al., No. 33192 (STARCHER, J.)(May 25, 2007). Plaintiff appealed from an order of the Circuit Court of Mingo County following a bench trial in this action for declaratory judgment to determine the extent and priority of liens on a 2002 pick-up truck. Reversing, and clarifying the conditions in which an improver's lien may be established. Holding, in syllabus point 2: "While W.Va. Code, 38-11-3 (2001), does provide for an improver's lien against motor vehicles that have been towed and stored, this statute does so only in circumstances where voluntary consent, express or implied, has been given to tow and store a motor vehicle. Consent obtained by fraud, deceit, or other improper or unconscionable means is not voluntary and therefore will not form the basis for an improver's lien under W.Va. Code, 38-11-3 (2001)." Further holding, in syllabus point 3: "An improver's lien under W.Va. Code, 38-11-3 (2001), is not created for storage fees generated when an improver has demanded unreasonable fees as a precondition for release of a stored motor vehicle."

MOTTO, et al. v. CSX TRANSPORTATION, et al., No. 33205 (BENJAMIN, J.)(Starcher, J., dissenting)(Albright, J., concurring in part and dissenting in part)(May 24, 2007). Certified question arising from the Circuit Court of Kanawha County regarding what discretion a court may have when a plaintiff fails to comply with the pre-suit provisions of W.Va. Code 55-17-1 through 5 before filing suit against a government agency. (1) Is there discretion for the Court to waive the mandatory notice provisions of W.Va. Code 55-17-1 through 5 absent a showing of good cause? CIRCUIT COURT'S ANSWER: Yes. (2) Does the Circuit Court have discretion to stay proceedings for thirty days to allow time to comply with the provisions of W.Va. Code §§ 55-17-1 through 5 after suit has been filed before notice has been given? CIRCUIT COURT'S ANSWER: Yes. Disagreeing with the circuit court's conclusion in both instances and holding, in syllabus point 3, that: "Compliance with the pre-suit notification provisions set forth in W. Va. Code 55-17-3(a) (2002) is a jurisdictional pre-requisite for filing an action against a State agency subject to the provisions of W. Va. Code 55-17-1, et seq. (2002)."

TERRY R. MACE, ET AL. v. FORD MOTOR CO., et al., No. 33080 (Per Curiam)(May 25, 2007). Plaintiffs appealed an order of the Circuit Court of Kanawha County granting summary judgment in favor of the defendant insurance company in this action for the negligent spoliation of evidence. Holding that the circuit court was correct in concluding that at the time plaintiffs conveyed their interest in the vehicle to Liberty Mutual, no suit had been filed, and plaintiffs never informed Liberty Mutual of their intent to file suit against Ford, therefore the insurance company owed the plaintiffs no duty to preserve the vehicle.

JACKSON v. PUTNAM COUNTY BD. Of EDUCATION, No. 33038 (Per Curiam)(Davis, C.J., concurring)(Maynard, J., concurring)(Starcher, J., dissenting)(Albright, J., dissenting)(May 24, 2007). Affirming an order of the Circuit Court of Putnam County that granted summary judgment in favor of the defendant school board in a lawsuit brought following the death of a high-school student in a vehicle accident that occurred when returning from a weekend retreat for the school choir. Holding that the material presented to the circuit court during resolution of the summary judgment motion did not establish a duty on the part of the school to provide transportation to the weekend retreat. Even if such a duty existed, the school's failure to provide transportation was not a legal cause of the student's death.

SCHRADER BYRD & COMPANION, P.L.L.C. v. MARKS, et al., No. 33184 (STARCHER, J.)(Maynard, J., and Benjamin, J., dissenting)(Albright, J., concurring)(April 5, 2007). Affirming a judgment of the Circuit Court of Ohio County that concluded that a law firm's fee arrangement with its clients was fair, reasonable and consistent with the original retainer agreement. Holding, in syllabus point 2, that: "An attorney fee payment arrangement whereby the attorney receives a percentage of funds as they are periodically received by the attorney's client is not, as such, either suspect or impermissible. Factors to be considered in determining an attorney's entitlement to receive fees in such a fashion include: (1) the terms of the fee agreement between the attorney and the client; and (2) whether, when viewed in the context of the entire representation of the client by the attorney, the fees are fair and reasonable."

HARTLEY HILL HUNT CLUB, et al., v. COUNTY COMMISSION OF RITCHIE COUNTY, et al., No. 33176 (STARCHER, J.)(Benjamin, J., disqualified)(Cookman, Judge, by temporary assignment)(May 11, 2007). Affirming an order of the Circuit Court of Ritchie County that upheld the constitutionality of W.Va. Code 20-2-5(28), which prohibits hunting on Sunday in certain circumstances. Holding, in syllabus point 5, that: "Article III, Section 22 of the West Virginia Constitution protects a person's right to keep and bear arms for lawful hunting. This clause preserves the State's right, through the exercise of its police power, to enact reasonable laws defining what forms of hunting are lawful."

KESSEL, et al. v. MONONGALIA GENERAL HOSPITAL CO., et al., No. 33096 (BENJAMIN, J.)(Starcher, J., dissenting)(June 6, 2007). Affirming an order of the Circuit Court of Monongalia County that granted partial summary judgment to defendants with regard to all claims under state antitrust law, arising out of plaintiffs' allegation that certain contracts for operative anesthesiology services at the hospital constituted a restraint of trade. Setting forth guidelines for determining when courts should comply with legislative direction to construe a particular statutory scheme in harmony with federal statutes and federal judicial interpretations. Holding that the circuit court correctly applied federal law. Rejecting appellant's contention that W. Va. C.S.R. 142-15-3 elevates tying arrangements to a per se violation of West Virginia antitrust law.

STATE EX REL. CARROLL EUGENE HUMPHRIES v. THOMAS MCBRIDE, WARDEN, No. 33103 (Per Curiam)(April 19, 2007). Petitioner appealed an order of the Circuit Court of Greenbrier County that denied his petition for a writ of habeas corpus. Petitioner was convicted by a jury on July 30, 1999, of one count of felony offense of accessory before the fact to murder of the first degree, and one count of the felony offense of conspiracy to commit murder. Reversing and remanding for a new trial, in light of the conflict of interest of defense counsel and ineffective assistance of counsel with regard to several issues throughout trial, as well as a Sixth Amendment violation at trial.

STATE v. JULIAN R. SMITH, No. 33171 (Per Curiam)(Maynard, J., dissenting)(Albright, J., concurring)(June 13, 2007). Reversing conviction of the offense of aggravated robbery following a jury trial in the Circuit Court of Kanawha County. Holding that a witness, disclosed after the defendant testified, who recanted an undisclosed pretrial statement that supported the defendant's defense of alibi, was prejudicial. Holding that "manifest necessity for a mistrial is demonstrated in the record in the following respects: (1) the State failed to provide notice of the rebuttal witness whose testimony was elicited to contradict Smith's alibi defense; (2) the State advised Smith that it was unaware of any evidence favorable to Smith and, further, failed to disclose to Smith the pretrial statement of the rebuttal witness which initially had supported Smith's alibi defense; and (3) although stating to the Circuit Court that no formal plea agreement had been made with the rebuttal witness, the State failed to disclose that the witness had been offered the possibility of entering a plea to unaggravated robbery in exchange for his truthful testimony at trial."

STATE v. JEREMIAH DAVID MONGOLD, No. 33222 (DAVIS, C.J.)(Starcher, J., concurring in part and dissenting in part)(June 6, 2007). Affirming a conviction for death of a child by parent, guardian or custodian by child abuse, obtained following a jury trial in the Circuit Court of Hampshire County. Holding that the trial court did not err in admitting related incident evidence that was not disclosed prior to trial, in light of the fact that the evidence was used to rebut defendant's character testimony. Setting forth a good cause standard for failure to disclose in syllabus point 3: "Rule 404(b) of the West Virginia Rules of Evidence requires the prosecution in a criminal case to disclose evidence of other crimes, wrongs or acts prior to trial if such disclosure has been requested by the accused; however, upon reasonable notice such evidence may be disclosed for the first time during trial upon a showing of good cause for failure to provide the requested pretrial notice." Further holding in syllabus point 4 that dismissal or acquittal of a charge does not prohibit its use as 404(b) material.

STATE v. GERALD THOMPSON, JR., No. 33097 (STARCHER, J.)(May 15, 2007). Defendant appealed a Clay County jury conviction for "attempting to operate or operating a clandestine drug lab." Reversing the conviction in light of the prejudice created by the repeated questioning of witnesses by the trial judge. Setting forth standards for evaluating whether a judge's partiality became a factor in the determination of the jury so that the defendant did not receive a fair trial.

STATE v. DENVER A. YOUNGBLOOD, JR., No. 31765 (DAVIS, C.J.)(Maynard, J., dissenting)(Starcher, J., concurring)(Benjamin, J., dissenting)(May 10, 2007). On remand from the Supreme Court of the United States, reversing a jury conviction obtained in the Circuit Court of Morgan County. Holding that a prosecutor's duty to disclose Brady material includes disclosure of evidence that is known only to a police investigator and not to the prosecutor. Further clarifying the three components of a constitutional due process violation under Brady, and holding that the failure to disclose constituted a due process violation. Remanded for new trial.

STATE ex rel. SERGENT v. NIBERT, et al., No. 33327 (ALBRIGHT, J.)(June 6, 2007). Granting a writ of prohibition sought by the prosecuting attorney of Roane County to prevent dismissal of an indictment for driving with a revoked license. Clarifying that administrative license suspension or revocation involves loss of both the license and privilege to operate a motor vehicle on public highways, and holding, in syllabus point 3 that "An individual who operates an all-terrain vehicle on a public highway of this state may be prosecuted for committing the offense of driving while suspended or revoked under the provisions of West Virginia Code 17B-4-3 (2004)."

STATE v. BRYAN ANTHONY MERRITT,, No. 33105 (Per Curiam)(April 19, 2007). Merritt appealed an order of the Circuit Court of Wood County that denied his petition for modification of sentence. Dismissed as moot in light of discharge of the 45-day sentence, and the absence of sufficient collateral consequences or great public interest that would justify relief. The underlying issue [^] whether the magistrate and circuit courts erred in not granting Merritt a stay [^] is of unique concern to Merritt.

STATE v. ANTHONY RAY WHITT, No. 33039 (ALBRIGHT, J.)(Maynard, J., dissenting)(Benjamin, J., concurring)(April 6, 2007). Anthony Ray Whitt appealed his McDowell County conviction for second degree murder. Holding that the circuit court erred by refusing to permit a co-defendant to be called to the stand who indicated her intention, through counsel, to invoke the Fifth Amendment if called to testify. Setting forth guidelines for establishing a violation of the right to compulsory process afforded criminal defendants in article III, section 14 of the West Virginia Constitution, and further setting forth guidelines regarding the exception to the general rule against not allowing a witness to take the stand solely to invoke the Fifth Amendment privilege against self-incrimination, providing that the circuit court has discretion to permit such compulsory process in certain circumstances. Remanded for a new trial.

STATE ex rel. CORNELL F. DAYE v. McBRIDE, Warden, Nos. 33100 & 33101 (STARCHER, J.)(June 27, 2007). Appellant sought review of an order of the Circuit Court of Raleigh County in a habeas corpus proceeding, arguing that the circuit court improperly corrected a sentence in order to permit enhancement. Holding, in syllabus point 5, that: "When any person is convicted of an offense under the Uniform Controlled Substances Act (W.Va Code, Chapter 60A) and is subject to confinement in the state correctional facility therefor and it is further determined, as provided in W.Va. Code, 61-11-19 (1943), that such person has been before convicted in the United States of a crime or crimes, including crimes under the Uniform Controlled Substances Act (W.Va. Code, Chapter 60A), punishable by confinement in a penitentiary, the court shall sentence the person to confinement in the state correctional facility pursuant to the provisions of W.Va. Code, 61-11-18 (2000), notwithstanding the second or subsequent offense provisions of W.Va. Code, 60A-4-408 (1971)." Holding that the circuit court properly corrected the illegal sentence originally imposed, and rejecting the appellant's argument that the enhancement provisions of the Uniform Controlled Substances Act should take precedence over the general habitual criminal offender statue. Remanded for appointment of counsel and further proceedings regarding remaining assignments of error.

STATE v. JAMES K. HOSBY, No. 33247 (Per Curiam)(June 7, 2007). Affirming an order of the Circuit Court of Jefferson County that revoked probation and ordered appellant to serve the remainder of a one-year jail sentence received after a guilty plea to the misdemeanor offense of failure to pay child support. Holding that the circuit court properly determined that the appellant failed to follow the conditions of probation.

STATE v. MICHAEL CUMMINGS, No. 33223 (BENJAMIN, J.)(Starcher, J., concurring)(Maynard, J., dissenting)(Albright, J., concurring)(June 6, 2007). Reversing felony convictions for attempting to operate a clandestine drug lab and conspiracy to attempt to operate a clandestine drug lab obtained following a jury trial in the Circuit Court of Roane County. Rejecting the State's argument that both intent and possession could be inferred from the circumstances, which involved evidence that the appellant was operating a vehicle, which was not owned by him, and which contained cold medicine and matches in the rear passenger area. Holding, in syllabus point 6, that: "In order to sustain a conviction for violation of W. Va. Code 60A-4- 411 (2003), by assembling any chemicals or equipment for the purpose of manufacturing methamphetamine, the State must prove beyond a reasonable doubt that the defendant had actual or constructive possession over the chemicals and/or equipment. In order to establish constructive possession where the defendant is present in a vehicle wherein such materials are found, the State must prove beyond a reasonable doubt that the defendant had knowledge of the presence of the chemicals and/or equipment to be used for the purposes of manufacturing methamphetamine and that such items were subject to the defendant's dominion and control."

STATE v. ERIC DELBERT JETT, No. 33198 (Per Curiam)(May 17, 2007). Defendant appealed a Kanawha County Circuit Court conviction and sentence for operating or attempting to operate a clandestine drug laboratory under West Virginia Code 60A-4-411. Affirming the conviction, and holding that the circuit court properly refused to give defendant's requested jury instruction defining the term "attempt."

STATE v. ADONIS RAY THOMPSON, No. 33206 (Per Curiam)(May 11, 2007). Defendant appealed Circuit Court of Kanawha County jury conviction for child neglect causing death, after his two-year old died from hyperthermia after being left in an infant car seat in defendant's car over four hours on a day when outside temperatures reached in excess of eighty degrees. Holding that it was not plain error for the trial court not to instruct the jury on the defense of unconsciousness or automatism, and further holding that the evidence was sufficient to support the conviction.

STATE v. VALERIE WHITTAKER, No. 33037 (Per Curiam)(Maynard, J., concurring)(Starcher, J., dissenting)(Albright, J., dissenting)(April 5, 2007). Defendant appealed her Mercer County jury conviction for voluntary manslaughter. Holding that the circuit court properly refused to grant a judgment of acquittal based upon self-defense; that the circuit court properly limited the testimony of certain defense witnesses; and that the circuit court properly handled other evidentiary matters, including admitting a statement made by the defendant.

STATE v. WADE C. DAVIS, No. 33191 (Per Curiam)(Maynard, J., dissenting)(Benjamin, J., dissenting)(April 5, 2007). Defendant appealed Circuit Court of Kanawha County jury conviction and sentence for second degree murder. Reversing and remanding for new trial, and holding that the circuit court erred in failing to properly instruct the jury that "intent" is an element of second degree murder, after the jury specifically inquired as to the difference between second degree murder and involuntary manslaughter.

LONTZ, et al. v. THARP, et al., No. 33243 (Per Curiam)(June 13, 2007). Affirming an order of the Circuit Court of Ohio County that dismissed a complaint alleging wrongful discharge. Holding that the circuit court properly determined that the action is preempted by the National Labor Relations Act. Appellants were supervisors at a Holiday Inn who engaged in union organizing activities. Holding that the National Labor Relations Board provides the best forum for resolving the issues, including the first-impression issue of whether the NLRA applies to activities by supervisors.

HUDKINS v. STATE of WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, No. 33245 (Per Curiam)(June 13, 2007). Affirming an order of the Circuit Court of Kanawha County that reversed the retirement board's administrative decision to deny the appellee's right to convert unused sick leave to retirement service credit. Although such credit was later precluded by rule, holding that the doctrine of equitable estoppel should be applied to permit the appellee to claim the service credit, in light of the fact that the appellee relied on representations of a retirement board employee to her detriment, all limited to the specific facts of the case.

STEPHEN ANTOLINI, ET AL. v. WV DIVISION OF NATURAL RESOURCES, No. 33182 (Per Curiam)(April 10, 2007). Three state employees appealed an order of the Circuit Court of Kanawha County that dismissed their grievance appeal upon determining that their claims were barred by res judicata. Reversing the circuit court's decision in light of the fact that in the companion case, the Grant County Circuit Court lacked jurisdiction to hear the appeal of the Level IV grievance, and in the absence of a final adjudication on the merits by a court having jurisdiction, the first element of res judicata is not satisfied. Remanded for further proceedings.

CAROLE E. DAMRON SHORTT v. FREDERICK CECIL DAMRON, No. 33185 (STARCHER, J.)(May 11, 2007). Former husband appealed an order of the Circuit Court of Kanawha County that affirmed a family court decision requiring him to pay expenses for the post high school education of his child. Clarifying the relationship between two versions of a statute relating to such orders in syllabus point 2: "W.Va. Code, 48-2-15d [1993] was amended in 1994 (using language now codified at W.Va. Code, 48-11-103(c) [2002]) to authorize courts to vacate the provisions of certain divorce orders entered under the authority of W.Va. Code, 48-2-15d [1993] that required a parent to pay for a child's post-majority college expenses without the agreement of the parent." Holding that the order in question was not subject to vacation, and therefore declining to reach the issue of whether the separation agreement was enforceable.

IN RE: MARRIAGE OF MISTY D.G. v. RODNEY L.F., No. 33226 (Per Curiam)(June 13, 2007). Reversing an order of the Circuit Court of Raleigh County that reversed a family court decision. Holding that the circuit court erred in concluding that the family court improperly considered inadmissible hearsay and expert witness evidence in rendering its decision to modify child custody. Holding that the family court properly admitted certain testimony by a counselor under the medical treatment exception to the hearsay rule, and that other improperly admitted testimony was harmless and did not affect the ultimate outcome. Remanded for reinstatement of family court's decision.

ZALESKI v. WEST VIRGINIA PHYSICIAN'S MUTUAL INSURANCE CO., No. 33242 (ALBRIGHT, J.)(June 27, 2007). Granting mixed relief from a final order of the Circuit Court of Ohio County in a suit involving reinstatement of medical malpractice insurance coverage. Holding that the physician's mutual insurance company formed pursuant to W. Va. Code 33-20F-1 et seq. is a state actor for due process purposes, and that physicians are entitled to due process protection in seeking review of any non-renewal decision made by the company. (Syl. Pts. 3 and 6.) Setting forth process required in syllabus point 8: "Being a state actor for due process purposes, West Virginia Physicians' Mutual Insurance Company is required to make available to parties affected by its non- renewal decisions a review process that minimally includes: notice of the non-renewal which conforms with the requirements of West Virginia Code 33-20C-4(a) and which includes the reasons for non-renewal; hearing before an unbiased hearing examiner; reasonable time in which to prepare to rebut the charges; opportunity to have retained counsel at any hearings on the charges; opportunity to present relevant evidence which includes calling and cross-examining witnesses; and preservation of an adequate record of the review proceedings." Directing that the matter be remanded to the physician's mutual for a proper non-renewal hearing.

WALKER v. OPTION ONE MORTGAGE CORP., et al., No. 33225 (Per Curiam)(Davis, C.J., dissenting)(Starcher, J., dissenting)(June 7, 2007). Reversing an order of the Circuit Court of Kanawha County that denied defendants below leave to file a counterclaim and third party complaint. Holding that the circuit court erred in denying leave to file a compulsory counterclaim, in the absence of evidence that the appellants were dilatory. Further holding that permitting the filing of a third-party complaint would not cause prejudice, and would promote judicial economy.

JOHN SMITH v. DR. DJ BRADLEY, PRESIDENT, FAIRMONT STATE UNIVERSITY, No. 33156 (Per Curiam)(April 13, 2007). Smith appealed an order of the Circuit Court of Marion County that dismissed his FOIA case against Fairmont State University after it granted him substantial relief: copies of other professors' performance evaluations with only certain personal information redacted. The circuit court also denied Smith's request for attorney's fees and costs because he was a pro se litigant, among other reasons. Granting mixed relief and affirming the circuit court's decision to provide evaluations in redacted form, and affirming denial of attorney's fees. Reversing the circuit court's determination that Smith was not entitled to court costs, and remanding for further consideration of an appropriate award of costs under W.Va. Code 29B-1-7.

MOTEN v. STUMP, COMM'R MOTOR VEHICLES, No. 33220 (Per Curiam)(Albright, J., concurring)(June 6, 2007). Appellant sought reversal of an order of the Circuit Court of Raleigh County that affirmed suspension of his driving privileges. Dismissing the appeal as improvidently granted, in light of the fact that no timely appeal was filed from the final order. Reiterating that there is no such thing as a "motion to reconsider" and that a motion filed under Rule 60(b) does NOT toll the running of the appeal period.

KOMINAR v. HEALTH MANAGEMENT ASSOCIATES of WEST VIRGINIA, Inc., et al., No. 33215 (ALBRIGHT, J.)(Starcher, J., concurring)(June 7, 2007). Reversing a defense verdict in a medical malpractice action tried before a six-member jury in the Circuit Court of Mingo County. Holding that the trial court erred in granting each of the three defendants three peremptory strikes, because the parties did not prove that a serious, genuine hostility existed among their positions, and further holding that such error requires granting a new trial. Further addressing the propriety of adverse inference instructions as a result of spoliation of medical records. In syllabus point 9, outlining factors to apply when trial courts consider limiting cross-examination. Finally holding, in syllabus point 10, that: "Trial courts should carefully examine whether an adversarial relationship exists between co-parties at the time a motion to limit cross-examination is raised in order to avoid the danger of prejudice, confusion, or delay." Remanding for new trial.

IN THE MATTER OF: CAROLYN D. CRUICKSHANKS, MAGISTRATE FOR BRAXTON COUNTY, No. 33336 (BENJAMIN, J.)(Starcher, J., concurring in part and dissenting in part)(Maynard, J., concurring)(Albright, J., concurring in part and dissenting in part)(June 6, 2007). Upholding a magistrate's suspension without pay following a finding of probable cause that the magistrate had engaged in a serious violation of the Code of Judicial Conduct. Setting forth factors to apply in similar cases, in syllabus point 3: "Always mindful of the primary consideration of protecting the honor, integrity, dignity, and efficiency of the judiciary and the justice system, this Court, in determining whether to suspend a judicial officer with or without pay, should consider various factors, including, but not limited to, (1) whether the charges of misconduct are directly related to the administration of justice or the public's perception of the administration of justice, (2) whether the circumstances underlying the charges of misconduct are entirely personal in nature or whether they relate to the judicial officer's public persona, (3) whether the charges of misconduct involve violence or a callous disregard for our system of justice, (4) whether the judicial officer has been criminally indicted, and (5) any mitigating or compounding factors which might exist."

LAWYER DISCIPLINARY BOARD v. MICHAEL F. NIGGEMYER, No. 33098 (Per Curiam)(March 20, 2007). Agreeing with recommendations of disciplinary counsel and holding the respondent in contempt for failure to comply with prior orders. Immediately suspending license to practice law and imposing other sanctions.

UNITED BANK, INC., et al. v. STONE GATE HOMEOWNERS ASSOCIATION, No. 33216 (DAVIS, C.J.)(May 10, 2007). Plaintiffs below appealed an order of the Circuit Court of Putnam County denying their requests for costs and attorney's fees under West Virginia Code 36B-3-116(f). Reversing, and holding in syllabus point 5 that: "The plain language of W. Va. Code § 36B-3-116(f) (1986) (Repl. Vol. 2005) requires a judgment or decree in any action brought under W. Va. Code 36B-3-116 to include an award of costs and reasonable attorney's fees for the prevailing party."

LYON CHAPMAN & SCOTT CHAPMAN, et al. v. SYLVIA CATRON, No. 33187 (Per Curiam)(May 11, 2007). Defendant below appealed an adverse summary judgment and contempt ruling entered by the Circuit Court of Hampshire County in a case involving a land dispute. Granting mixed relief, and holding that the circuit court properly determined that a roadway to a subdivision was a private dedication. Reversing the circuit court's contempt finding in light of the absence of evidence that the roadway had not been restored to its original condition.

BURCH, et al. v. NEDPOWER MOUNT STORM LLC, et al., No. 33201 (MAYNARD, J.)(Benjamin, J., dissenting)(June 8, 2007). Reversing an order of the Circuit Court of Grant County that dismissed an action that sought to enjoin, under a nuisance theory, the construction of a wind power generating facility. Holding, in syllabus point 8, that: "The right of a person under the common law to bring in circuit court a nuisance claim to enjoin the construction and/or operation of an electric generating facility that is designated under federal law as an exempt wholesale generator is not precluded by the fact that the Public Service Commission of West Virginia has granted a siting certificate to the owner or operator of the facility pursuant to W.Va. Code 24-2-1(c)(1) (2006) and related statutes." Further holding, in syllabus point 11 that: "While unsightliness alone rarely justifies interference by a circuit court applying equitable principles, an unsightly activity may be abated when it occurs in a residential area and is accompanied by other nuisances." Finally holding, in syllabus point 12: "An activity that diminishes the value of nearby property and also creates interferences to the use and enjoyment of the nearby property may be abated by a circuit court applying equitable principles." Remanding for further proceedings.

BILLY R. TRUMAN v. THOMAS C. AUXIER, No. 33159 (Per Curiam)(April 6, 2007). Auxier appealed an order of the Circuit Court of Clay County finding him in contempt of a prior order, and asserted that he was not timely served with the notice of hearing on Truman's Motion for Contempt. Reversing the Circuit Court's contempt finding, in light of the deficiencies regarding service of the notice of hearing under Rule 6(d) of the Rules of Civil Procedure.

OPHA L. KEITH ESTATE, BY SHARON BUCKLAND, EXEX. v. DAVID W. KEITH, No. 33131 (ALBRIGHT, J.)(April 19, 2007). Answering a certified question arising from the Circuit Court of Monroe County related to whether, upon the destruction of the real property included in a life estate, a remainderman is entitled to the proceeds from a fire insurance policy that the life tenant applied for and purchased. Holding, in syllabus point 2, that: "Where a life tenant insures the property subject to the life estate in his own name and for his own benefit and pays the premiums from his own funds, he is solely entitled to the proceeds of the insurance upon a loss absent a provision in the instrument creating the estate that requires the life tenant to insure the estate for the benefit of the remainderman; an agreement between the life estate tenant and the remainderman that the estate will be insured for the benefit of the remainderman; or the existence of a fiduciary relationship between the remainderman and the life tenant."

GARY JENKINS v. CSX TRANSPORTATION, INC., No. 33179 (Per Curiam)(Davis, C.J., concurring)(Starcher, J., dissenting)(Albright, J., dissenting)(May 17, 2007). Plaintiff below appealed an order of the Circuit Court of Ohio County that denied a motion for a new trial in a case under the Federal Employer's Liability Act. Affirming, and holding that the trial court did not abuse its discretion in limiting the testimony of the plaintiff's expert in the field of neuropsychology such that he could not give an opinion as to the cause of the plaintiff's alleged brain injury.

ESTATE OF FOUT-ISER v. HAHN, et al., No. 33189 (MAYNARD, J.)(Davis, C.J., dissenting)(May 21, 2007). Reversing an order of the Circuit Court of Mineral County that granted summary judgment in favor of a defendant in a medical malpractice action, after determining that plaintiffs failed to produce a medical expert who would testify regarding the standard of care and causation. Clarifying the requirements for such testimony in syllabus points 5 and 6: "When a particular defendant's failure to meet the standard of care is at issue in medical malpractice cases, the sufficiency and nature of proof required is governed by West Virginia Code 55-7B-7(a) (2003), which specifically provides that: 'The applicable standard of care and a defendant's failure to meet the standard of care, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court.' Once it is established that a particular expert is to be used as a standard of care witness, the trial court must determine the qualifications of that expert witness pursuant to W.Va. Code 55-7B-3(a)(1) (2003), which provides that a plaintiff in a medical malpractice action must show that: 'The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances[.]'" Concluding that the expert testimony provided was sufficient to create a material issue of fact regarding the standard of care and causation. Remanded for further proceedings.

DAVID R. KYLE v. DANA TRANSPORT, INC., et al., No. 33183 (ALBRIGHT, J.)(Davis, C.J., concurring)(Starcher, J., concurring)(May 15, 2007). Plaintiff, an electrician who was injured when an electrical panel exploded, appealed an order of the Circuit Court of Putnam County that granted judgment in favor of defendants and ruled that plaintiff was not entitled to present his case under a res ipsa loquitur theory. Affirming the circuit court's order, and holding, in syllabus point 4, that: "A plaintiff seeking to apply the doctrine of res ipsa loquitur is required to demonstrate that the evidence he or she intends to present is circumstantial evidence that will lead to reasonable inferences by the jury, and is not simply evidence which would force the jury to speculate in order to reach its conclusion." Further clarifying the evidentiary standards in syllabus point 6: "In order to avoid summary judgment or judgment as a matter of law, a plaintiff who seeks to proceed on a theory of res ipsa loquitur must demonstrate each of the three prongs of the test this Court adopted in syllabus point four of FOSTER v. CITY OF KEYSER, 202 W.Va. 1, 501 S.E.2d 165 (1997), as a predicate to application of the evidentiary rule of res ipsa loquitur."

ERIC JASON BROOKS v. GALEN OF WEST VIRGINIA, INC., DBA GREENBRIER VALLEY MED CTR., No. 33207 (Per Curiam)(April 19, 2007). Brooks appealed denial of post -trial motions following an adverse jury verdict obtained in the Circuit Court of Greenbrier County in a case alleging medical negligence. Affirming, and holding that the circuit court did not err in taking judicial notice of a Social Security Disability award for somatoform disorder -- a different disorder than alleged at trial -- where the plaintiff acquiesced to introduction of the evidence. Further holding that the circuit court properly excluded certain testimony relating to deviations from the emergency room standard of care.

STATE ex rel. ERIE INSURANCE PROPERTY & CASUALTY CO. v. MAZZONE et al., No. 33209 (ALBRIGHT, J.)(Starcher, J. concurring)(Benjamin, J., concurring)(June 7, 2007). Denying a writ of prohibition sought by insurer in a third-party bad faith action to prevent enforcement of an order requiring disclosure of relevant reserves information to the plaintiff below. [See prior case involving similar order: SER ERIE INS. PROP. & CAS. Co. v. MAZZONE, 218 W.Va. 593, 625 S.E.2d 355 (2005)("ERIE I").] In syllabus points 4, 5 and 6, setting forth guidance for determining whether case reserves information is privileged from disclosure:

4. When individual case reserves information is set by an attorney or by a non- lawyer representative with the primary intent of preparing for litigation, then the individual case reserves information is subject to protection from discovery as opinion work product pursuant to Rule 26(b)(3) of the West Virginia Rules of Civil Procedure.

5. For the purposes of Rule 26(b)(3) of the West Virginia Rules of Civil Procedure, aggregate reserves documents compiled for specific litigation either by a lawyer or by a non-lawyer representative are opinion work product and merit greater protection from discovery. However, aggregate reserves documents not developed primarily in anticipation of specific litigation but produced for general business purposes are not protected by the work product rule.

6. Reserves documents determined to be opinion work product are generally protected from disclosure under the provisions of Rule 26(b)(3) of the West Virginia Rules of Civil Procedure unless the party seeking discovery demonstrates compelling need for the materials, which shall include proof that the opinion materials qualify for a recognized exclusion from application of the work product doctrine.

MICHAEL WORLEY, et al. v. BECKLEY MECHANICAL, INC., et al., No. 33190 (MAYNARD, J.)(Davis, C.J., dissenting)(Starcher, J., concurring)(Benjamin, J., dissenting)(May 17, 2007). Plaintiffs appealed following a bench trial in the Circuit Court of Raleigh County on the issue of whether plaintiff was under a disability that either suspended or tolled the running of the statute of limitations in this personal injury action. Examining legislative intent in construing W.Va. Code 55-2-15, and finding that a literal application of the statute's language potentially excludes from protection many persons the statute was intended to protect. Reversing, and setting forth evidentiary guidelines in syllabus point 4: " In order for mental illness to toll the commencement of the running of the statute of limitations pursuant to W.Va. Code 55-2-15 (1923), the plaintiff must show that the interval between the tortious act and the resulting mental illness was so brief that the plaintiff, acting with diligence, could not reasonably have taken steps to enforce his or her legal rights during such interval."

STATE ex rel. JOHNSON & JOHNSON CORP., etc. v. KARL, et al., No. 33211 (DAVIS, C.J.)(Starcher, J., concurring)(Maynard, J., concurring)(Albright, J., dissenting)(Benjamin, J., dissenting)(June 27, 2007). Denying a writ of prohibition sought by pharmaceutical company to prevent enforcement of an order of the Circuit Court of Marshall County. Holding, in syllabus point 3, that: "Under West Virginia products liability law, manufacturers of prescription drugs are subject to the same duty to warn consumers about the risks of their products as other manufacturers. We decline to adopt the learned intermediary exception to this general rule."

PHILLIPS v. LARRY'S DRIVE-IN PHARMACY, INC., No. 33194 (STARCHER, J.)(Maynard, J., concurring)(June 28, 2007). Answering certified question from the Circuit Court of Boone County in a case where a plaintiff alleges that a pharmacy negligently filled a prescription. In construing the provisions of the 1986 Medical Professional Liability Act, holding, in syllabus point 5, that: "Where there is any doubt about the meaning or intent of a statute in derogation of the common law, the statute is to be interpreted in the manner that makes the least rather than the most change in the common law." Although affidavits were submitted from several legislators who participated in the conference committee involving the legislation at issue, holding that the circuit court did not abuse its discretion in refusing to consider the affidavits in assessing legislative intent; although information in the affidavits is persuasive, "the information is not corroborated by the legislative history because the Legislature failed to preserve any record of the committee meetings to which the affidavits refer. Furthermore, the affidavits go beyond reciting the history behind the MPLA's enactment and instead detail each legislator's opinion about the proper interpretation of the statute." Finally holding, in syllabus point 7, that: "A pharmacy is not a 'health care provider' as defined by the Legislature in W.Va. Code, 55-7B-2(c) [1986]" and is therefore not entitled to the protections set forth therein.

HAINES v. KIMBLE, No. 32844 (Per Curiam)(Davis, C.J., dissenting)(Starcher, J., concurring)(Maynard, J., dissenting)(June 28, 2007). Upon rehearing, affirming an order of the Circuit Court of Hampshire County that affirmed an order of the County Commission of Hampshire County that denied a petition by the appellant to remove a designated executrix. Holding that the circuit court properly limited its review to the record made before the county commission, which did not include many of the claims of mal-administration currently asserted. Of the claims properly asserted and made part of the record, neither were sufficient to compel removal of the executrix. Further holding that the appellant failed to prove hostility sufficient to remove the executrix. In view of the deference to be accorded a testator's selection of a fiduciary, any hostility, without more, is an insufficient basis for removal of the designated executrix.

STATE ex rel. DONALD DARLING v. DARRELL V. McGRAW, JR., ATTORNEY GENERAL, et al., No. 33210 (Per Curiam)(Davis, C.J., concurring)(Starcher, J., concurring in part and dissenting in part)(Albright, J., concurring in part and dissenting in part)(June 28, 2007). Denying a writ of mandamus sought to compel payment of damages for chronic depression and migraines alleged to have arisen in the course of and resulting from his employment by the Attorney General. In the absence of a physical impact, workers' compensation benefits were denied, and the petitioner sought relief for the so-called "mental-mental" injury under the stop-gap provision of the state's comprehensive liability policy. Holding that the petitioner is not entitled to relief in mandamus, in light of the fact that he did not demonstrate a clear right to the relief he seeks and cannot demonstrate a legal duty on the part of his employer to act as requested.

Today I'll be posting the contents of Issue #92 of the opinion summary service. The most recent issue covers the last 45 opinions issued in the January 2007 term of court.

Summaries of the first ten opinions issued this term were posted today, and will be e-mailed to subscribers as Issue #91. The opinions include State v. Mullens, held over from the prior term of court. The next argument docket will be held March 13th  [Permanent Link]  Google It! 

IN RE: AUSTIN G. AND BREONA R., No. 33134 (Per Curiam)(February 21, 2007). Father appealed an order of the Circuit Court of Mingo County that terminated his parental rights, arguing that termination was not justified and arguing that the circuit court erred in denying post-termination visitation. Affirming the circuit court's decision on both points.

STATE v. EDDIE MULLENS, No. 33073 (DAVIS, C.J.)(Starcher, J., concurring)(Maynard, J., dissenting)(Albright, J., concurring)(Benjamin, J., dissenting)(February 28, 2007). Reversing an order of the Circuit Court of Boone County that denied a motion to suppress, where the defendant entered a conditional guilty plea and preserved the issue for appeal. After extensive review of state and federal authorities, holding that the West Virginia Constitution affords greater protection than the Fourth Amendment of the United States Constitution from warrantless electronic surveillance in the home. Holding, in syllabus point 2 that: "It is a violation of West Virginia Constitution article III, section 6 for the police to invade the privacy and sanctity of a person's home by employing an informant to surreptitiously use an electronic surveillance device to record matters occurring in that person's home without first obtaining a duly authorized court order pursuant to W. Va. Code 62-1D-11 (1987) (Repl. Vol. 2005). To the extent that STATE v. THOMPSON, 176 W. Va. 300, 342 S.E.2d 268 (1986), holds differently, it is overruled." Further holding, in syllabus point 4: "Article III, section 6 of the West Virginia Constitution prohibits the police from sending an informant into the home of another person under the auspices of the one- party consent to electronic surveillance provisions of W. Va. Code 62-1D-3(b)(2) (1987) (Repl. Vol. 2005) where the police have not obtained prior authorization to do so pursuant to W. Va. Code § 62-1D-11 (1987) (Repl. Vol. 2005)."

SER KEITH O'DELL MCCOURT v. HON. JACK ALSOP, JUDGE, No. 33213 (Per Curiam)(Albright, J., concurring in part and dissenting in part)(February 22, 2007). Petitioner sought to prohibit prosecution of a 1994 indictment, where petitioner was not arrested until 2006. Denying the writ, and holding that there was no speedy trial violation where the defendant never appeared for arraignment, where the State consistently obtained bench warrants and where the record fails to show any evidence that the State was aware of the defendant's whereabouts.

STATE v. MARJORIE VIRGINIA GREEN, No. 33200 (ALBRIGHT, J.)(February 21, 2007). Defendant appealed her jury convictions in the Circuit Court of Hardy County on two counts of negligent homicide, arising from a vehicle accident that resulted in two deaths. Reversing the convictions and clarifying the standard set forth in STATE v. VOLLMER, 163 W.Va. 711, 259 S.E.2d 837 (1979), and holding, in syllabus point 5 that: "A conviction for negligent homicide must not be premised solely upon the violation of a traffic statute unless the underlying act which constitutes the violation or accompanying circumstances evidence a reckless disregard for the safety of others, characterized by negligence so gross, wanton, and culpable as to show a reckless disregard for human life."

STATE v. ALLEN D. WAUGH, No. 32773 (Per Curiam)(February 16, 2007). Petitioner appealed a conviction for second degree murder upon a jury trial in the Circuit Court of Mason County. Affirming the conviction, and holding that under the circumstances of the case, a bailiff who also acted as a prosecution witness did not violate due process, because the deputy's testimony was not that of a key witness at trial. Further concluding that questioning of a witness by the trial judge exceeded the scope of permissible questioning authorized by Rule 614(b), but did not rise to the level of plain error.

STATE ex rel. STEPHANIE SUE GIBSON v. HON. JOHN S. HRKO, JUDGE, et al., No. 33203 (Per Curiam)(February 15, 2007). Denying a writ of prohibition sought by a criminal defendant to compel the circuit court of Wyoming County to accept a plea agreement. After reviewing the circumstances of the case, holding that no plea agreement was ever reached, and that the circuit court nevertheless had discretion to reject any agreement that may have been reached, and that if an agreement had been reached, the conditional offer of immunity discussed by the parties was never brought to fruition.

R. E. HAMRICK, JR., M.D. v. CHARLESTON AREA MEDICAL CENTER, INC., No. 33107 (STARCHER, J.)(March 1, 2007). R. Edward Hamrick, Jr., M.D. appealed an order of the Circuit Court of Kanawha County that granted summary judgment in favor of the hospital, and held that under the Open Hospital Proceedings Act, the only governing body of CAMC is the Board of Trustees, and therefore is the only hospital body subject to the statute's open meetings requirement. Reversing, and holding that the Act was also intended to cover other governing bodies such as the Medical Staff Executive Committee. Holding, in syllabus point 2: "The application of the term 'governing body' in the Open Hospital Proceedings Act, W.Va. Code, 16-5G-2(3) [1999], is not limited to a single, ultimate, or 'top' decision-making body in a hospital's governance structure. Rather, the term must be given a flexible and common-sense functional application to accomplish the Legislative purpose set forth in W.Va. Code, 16-5G-1 [1982] that 'all proceedings of the boards of directors or other governing bodies of such hospitals be conducted in an open and public manner so that the people can remain informed of the decisions and decision making processes affecting the health services on which they so vitally depend and which they help support,' subject to the exceptions contained in W.Va. Code, 16-5G-4 [1999]."

LAWYER DISCIPLINARY BOARD v. A. WAYNE KING, No. 32974 (Per Curiam)(February 16, 2007). Departing from a six-month suspension recommendation by the Hearing Panel Subcommittee, and imposing a sixty day suspension, with specific conditions for reinstatement, including restitution, for violating Rule 1.8(a) of the Rules of Professional Conduct.

DANIEL R. STRAHIN v. EARL SULLIVAN, et al., No. 33091 (MAYNARD, J.)(Starcher, J., and Albright, J., dissenting)(Davis, C.J., concurring)(Benjamin, J., concurring)(February 21, 2007). Plaintiff Daniel Strahin appealed an order of the Circuit Court of Barbour County granting summary judgment in favor of Farmers & Mechanics Insurance Company of West Virginia, Inc. on plaintiff's SHAMBLIN v. NATIONWIDE claim, which had been assigned to the plaintiff prior to trial by the defendant Earl Sullivan, along with a covenant not to execute. Affirming the circuit court's grant of summary judgment, and holding that because a pre-trial Covenant Not to Execute between the plaintiff and the defendant insured meant that the insured's personal assets were not at risk because of the excess verdict, then there can be no SHAMBLIN claim.

JOHN BARBINA, etc. v. CHARLES CURRY, et al., No. 33102 (DAVIS, C.J.)(February 15, 2007). Petitioner appealed an order of the Circuit Court of Taylor County that granted summary judgment in favor of respondents in a civil suit arising out of an infant being sexually abused and allegations that the abuse was negligently reported and services were negligently provided. Affirming summary judgment, and clarifying that there is no cause of action for negligent failure to report under W.V. Code 49-6A-2. Holding that the direct contact requirement of the special relationship doctrine could be satisfied through competent evidence showing a report of child abuse was actually made to and received by the DHHR, but that in this case the evidence did not show a direct contact was made.

Issue 90 of the Opinion Summary service is posted, covering the final 24 opinions issued for cases argued in the September 2006 term. The opinions in the following three cases argued this term will be held over until next term, when the opinions will issue in due course. The cases are listed below, along with a link to the day the case was argued, where briefs are available.

• STATE v. MULLENS, No. 33073 (constitutionality of warrantless audio and video recordings obtained by undercover police informant while in defendant's home)
• HAINES v. KIMBLE, No. 32844 (appeal from refusal to remove executor of an estate, argued on rehearing)
• JACKSON v. PUTNMAN COUNTY BD. of ED., et al., No. 33038 (plaintiff appeals summary judgment for defendant where plaintiff asserts that the school board was negligent in failing to provide transportation for her son to an off-campus school event; her son was killed in an accident while riding in a private vehicle on the way back from the event)

IN RE: RANDY H., APRIL G., BRITTANY T. AND MEGAN H., No. 33086 (STARCHER, J.)(November 30, 2006). Guardians ad litem for four children appealed an order of the Circuit Court of Hardy County that dismissed an abuse and neglect case. Reversing, and holding that the circuit court had authority to compel the Department to further investigate additional allegations of abuse and had a duty to make findings of fact and conclusions of law regarding those allegations. Holding, in syllabus point 5: "To facilitate the prompt, fair and thorough resolution of abuse and neglect actions, if, in the course of a child abuse and/or neglect proceeding, a circuit court discerns from the evidence or allegations presented that reasonable cause exists to believe that additional abuse or neglect has occurred or is imminent which is not encompassed by the allegations contained in the Department of Health and Human Resource's petition, then pursuant to Rule 19 of the Rules of Procedure for Child Abuse and Neglect Proceedings [1997] the circuit court has the inherent authority to compel the Department to amend its petition to encompass the evidence or allegations."

IN RE: CHRISTINA W., SISSY W., AND LISA W., No. 33133 (DAVIS, C.J.)(November 29, 2006). WVDHHR appealed an order of the Circuit Court of Mercer County denying the Department's motion to remove guardian ad litem. Affirming, and addressing situation where guardian is asked to keep abuse confidential. Holding that the role of a guardian is similar to the role of an attorney in an attorney-client relationship, and therefore, as a general rule, the Rules of Professional Conduct apply. However, also holding that the duty to protect client confidences is not absolute, and where there is a high risk of probable harm, the guardian has a duty to disclose to the circuit court.

STATE v. RONNIE ALLEN RUSH, No. 33035 (Per Curiam)(Maynard, J., dissenting)(Benjamin, J., concurring)(November 30, 2006). Defendant appealed the transfer of his case to adult status by the Circuit Court of Calhoun County and his ensuing convictions on two counts of manslaughter and one count each of first degree robbery, burglary, and conspiracy to commit burglary. Granting mixed relief, and affirming the circuit court's transfer decision. Reversing the circuit court's decision with regard to the admission of certain statements obtained. Holding that the totality of the circumstances, in light of the appellant's juvenile status and mental impairment, demonstrate that the significant period of delay in taking the appellant before a judicial officer was for the improper purpose of eliciting a confession. Remanding for new trial.

STATE OF W. VA. v. ROGER ERIC JONES, No. 33072 (Per Curiam)(November 29, 2006). Petitioner was convicted for First Degree Murder and sentenced by the Circuit Court of Roane County to life in prison with no possibility of parole. Affirming the conviction and sentence, and rejecting argument that because questioning pertained to more than one crime but only one set of Miranda warnings were given, the post-arrest statements were improperly admitted. Further holding that no evidence of coercion was presented.

STATE v. MICHAEL LEE KENDALL, No. 32689 (Per Curiam)(Starcher, J., dissenting)(November 29, 2006). Petitioner appealed his convictions upon jury trial in the Circuit Court of Gilmer County for burglary and for three counts of brandishing a firearm. Reversing, and holding that the jury, rather than the circuit court, should have decided the question of whether exigent circumstances existed for the defendant, a city police officer, to enter the home. Further holding that, despite the presence of multiple witnesses, one act of brandishing should produce a conviction for only one act of brandishing. Remanding for new trial.

STATE v. ERNEST J. JOHNSON, No. 32978 (Per Curiam)(Starcher, J., concurring)(November 29, 2006). Ernest J. Johnson appealed an order of the Circuit Court of Cabell County entered upon conviction for second degree robbery and sentence as an habitual offender to life with mercy. Vacating the robbery conviction, in light of the fact that the defendant was wrongly charged with first degree robbery, where no firearm or other weapon was presented. Holding that the lack of objection to the indictment did not act as a waiver, because the indictment was so defective as not to charge an offense.

STATE v. KEVIN RAY MIDDLETON, No. 33048 (DAVIS, C.J.)(Starcher, J., dissenting)(Albright, J., dissenting)(Maynard, J., concurring)(November 29, 2006). Kevin Ray Middleton appealed his conviction and sentence imposed by the Circuit Court of Kanawha County for one count of sexual abuse by a parent, guardian or custodian and one count of first degree sexual abuse. Affirming, and rejecting arguments that statements made to authorities were improperly admitted. Outlining the factors to be considered by the trial court in determining whether a custodial interrogation exists for purposes of requiring MIRANDA warnings. Also setting forth two important holdings with regard to whether the defendant must be informed of the presence of counsel while being interrogated in a noncustodial setting. See, syllabus point 3: "A police officer may continue to question a suspect in a noncustodial setting, even though the suspect has made a request for counsel during the interrogation, so long as the officer's continued questioning does not render statements made by the suspect involuntary." Syllabus point 4: "If, during the course of noncustodial interrogation of a suspect, the police are made aware that legal counsel has been retained for the suspect, the police are under no obligation to inform the suspect that counsel has been retained." Finally, clarifying the manner in which presentence credits should be applied, "against the aggregated maximum term of the consecutive sentences." Syllabus point 6.

STATE OF W. VA. v. MICHAEL DAVID DOONAN, No. 33052 (DAVIS, C.J.)(Maynard, J., dissenting)(December 1, 2006). Defendant, who was convicted of First Offense DUI by Magistrate Court, appealed an order of the Circuit Court of Wood County finding that the errors he cited were harmless, denying his appeal from conviction and sentencing him to serve 48 hours in jail. Reversing, and concurring with the State's confession of error as to defendant's assertion that the magistrate court erred by precluding his expert from testifying on the basis that the expert was not disclosed to the State. Holding, in syllabus point 5 that: "Until an appropriate rule is adopted in the Rules of Criminal Procedure for Magistrate Courts, the provisions of Rule 16 of the West Virginia Rules of Criminal Procedure shall govern the procedures and requirements for discovery in criminal cases which are to be heard on their merits in magistrate courts." Although the defendant made a request for discovery from the State, the State did not comply, and therefore under the reciprocal discovery principles in Rule 16, the defendant was under no obligation to disclose his expert. Therefore, the magistrate court erred in excluding the expert's testimony. Providing further guidance for remand regarding admission of an illegible printout. Remanding for new trial.

STATE v. BRUSIE "DON" LANHAM, No. 33092 (Per Curiam)(November 30, 2006). Petitioner appealed an order of the Circuit Court of Ritchie County that denied the defendant's motion for a new trial following a jury conviction of felony-murder. Petitioner was sentenced to life in prison without the possibility of parole. Affirming, and rejecting the petitioner's argument that the State improperly destroyed exculpatory evidence when it returned the mobile home where the shootings took place to the family before defense counsel could examine the physical evidence. Holding that the circuit court did not err, in light of the fact that the conviction was for felony murder, the weight of eyewitness testimony, the 911 tape, and other evidence presented at trial, the absence of assertions that any critical piece of evidence was improperly preserved, and the efforts made by the State to collect all necessary evidentiary samples before the trailer was returned.

STATE v. TONY FRANKLIN DAUGHERTY, SR., No. 33075 (Per Curiam)(Starcher, J., concurring in part and dissenting in part)(November 29, 2006). Petitioner appealed an order of the Circuit Court of Summers County denying a Motion for a New Trial after conviction, following a jury trial, on four counts of sexual abuse by a parent, guardian or custodian. Affirming, and holding that statements by a juror about fear of possible retaliation related to the mental process of the jury and therefore could not form the basis for a new trial under Rule of Evidence 606(b).

SER MARK DICKERSON v. CITY OF LOGAN, et al., No. 33174 (Per Curiam)(November 29, 2006). Petitioner sought to compel reinstatement as police officer and a pre-termination hearing. Granting moulded relief, and holding that due process was violated by the City's failure to provide reasons in writing and a pre-termination hearing. Reinstated with back pay.

FREDERICO HATCHER v. THOMAS McBRIDE, WARDEN, No. 32977 (STARCHER, J.)(November 21, 2006). Frederico Hatcher appealed an order of the Circuit Court of Cabell County that denied his petition for post-conviction habeas corpus. He was previously convicted of felony murder without a recommendation of mercy. Holding that the assertion of evidentiary error with regard to admission of character testimony by a circuit judge was not cognizable in a habeas corpus proceeding. Holding further that testimony by judges should be discouraged, and setting forth guidelines to be followed in the future, including an appropriate balancing test, cautionary instructions, and other limitations.

MARTHA F. RYAN v. CHARLES E. RYAN, No. 33004 (BENJAMIN, J.)(Davis, C.J., disqualified)(Wilson, Judge, by temporary assignment)(December 1, 2006). Petitioner wife appealed an order of the Circuit Court of Kanawha County refusing her petition for appeal and affirming the family court's final order denying her petition for modification seeking to extend her monthly rehabilitative alimony payments. Affirming the denial of extended alimony, and holding, in syllabus point 3 that: "A contract may not be reformed or rescinded based upon a mutual mistake of fact if the mistake relates to a mistaken belief, judgment, or expectation as to future, rather than past or present, facts, occurrences or events."

PATRICIA E. FITZGERALD v. EARL L. FITZGERALD, No. 33043 (DAVIS, C.J.)(Starcher, J., dissenting)(Albright, J., dissenting)(Benjamin, J., concurring)(November 30, 2006). Answering certified questions from the Circuit Court of Putnam County relating to whether worker's compensation permanent total disability benefits constitute marital or separate property for purposes of equitable distribution in a divorce proceeding. Holding, in syllabus point 3: "A workers' compensation permanent total disability award is considered to be wage replacement for the wages the injured employee would have earned but for his/her work-related injury and is not considered to be an award for the injured employee's pain and suffering resulting from such work-related injury." Further holding, in syllabus point 5: "In a divorce proceeding, that portion of a lump sum workers' compensation permanent total disability award that represents wages the injured spouse would have earned, but for his/her work-related injury, while the parties were married and cohabiting constitutes marital property subject to equitable distribution pursuant to W.[integral]Va. Code 48-7-101, et seq."

KATHERINE B.T. v. SALLY G. JACKSON, FAMILY COURT JUDGE, et al., No. 33005 (STARCHER, J.)(Maynard, J., dissenting)(November 30, 2006). Petitioner appealed an order of the Circuit Court of Jefferson County that denied her petition for a writ of prohibition seeking to prohibit the effect of orders entered by the family court in a domestic violence proceeding brought against petitioner by her minor son. Affirming the lower court's decision, and holding that a minor may file a petition for a domestic violence protective order under W. Va. Code 48-27-305. Further holding that a guardian ad litem must be appointed in such circumstances. Finally, setting forth reporting duties for judicial officers who have reasonable cause to suspect that a child is neglected or abused in syllabus point 8: "When any circuit court judge, family court judge, or magistrate has reasonable cause to suspect that a child is neglected or abused, the circuit court judge, family court judge, or magistrate shall immediately report the suspected neglect or abuse to the state child protective services agency pursuant to W.Va. Code, 49-6A-2 (2006) and, if applicable, Rule 48 of the Rules of Practice and Procedure for Family Court."

STATE EX REL. ROBERT L. MCCABE v. EVELYN SEIFERT, WARDEN, No. 32976 (Per Curiam)(Albright, J., dissenting)(Starcher, J., disqualified)(Mazzone, Judge, by temporary assignment)(November 29, 2006). Petitioner, who is now released on parole, appealed an order of the Circuit Court of Monongalia County denying his petition for a writ of habeas corpus. Holding that the appeal must be dismissed as moot, where limited issues remain, where the petitioner is on parole and does not make a substantive challenge to the conditions of his parole, with leave to file a motion in circuit court for correction of sentence.

SER R. E. HAMRICK, JR., M.D. v. HON. JAMES C. STUCKY, et al., No. 33195 (MAYNARD, J.)(Starcher, J., dissenting)(Benjamin, J., concurring in part and dissenting in part)(November 30, 2006). Petitioner sought to prevent further involvement of a discovery commissioner, and to prevent enforcement of the commissioner's recommendations. Granting the writ of prohibition, and holding, in syllabus point 5: "Whenever a discovery commissioner is appointed by a circuit court, and there is a timely objection to that appointee, the trial court has a duty to hold an evidentiary hearing to determine the legitimacy of the objection." In order to avoid even the appearance of impropriety, directing that a new discovery commissioner be appointed on remand.

LAWYER DISCIPLINARY BOARD v. LEONARD S. COLEMAN, No. 32861 (Per Curiam)(November 30, 2006). Concurring with the Hearing Panel Subcommittee's recommendation that the license to practice law be annulled for violations of the Rules of Professional Conduct involving misappropriation of over $170,000 in client fees paid to law firm. Rejecting mitigating circumstances asserted by the respondent and agreeing with the aggravating circumstances asserted by the Board. Further ordering full restitution to former law firm, with interest at a rate of ten percent per year, and payment of the costs of the disciplinary proceeding.

LAWYER DISCIPLINARY BOARD v. DESIREE LYNETTE ALBERS, No. 31279 (Per Curiam)(November 29, 2006). Accepting the Hearing Panel Subcommittee's recommendation, and granting a petition for reinstatement to the practice of law, with certain conditions.

JOHN SMITH, ET AL. V. IRMA SMITH, No. 33063 (BENJAMIN, J.)(December 1, 2006). Plaintiffs John and Katherine Smith appealed an order of the Circuit Court of Summers County entered after a bench trial on their suit to reform a deed. Granting mixed relief, and holding that if an unambiguous deed fails to express the obvious intentions of the parties, a court may utilize parole evidence to ascertain the parties' intent. Further clarifying the doctrine of mutual mistake and reformation of deeds, in syllabus point 4: "A mutual mistake is one which is common to all parties, wherein each labors under the same misconception respecting a material fact or provision within the agreement[;]" and in syllabus point 5: "To justify the reformation of a clear and unambiguous deed for mistake, the mistake must be one of fact, not of law; the mistake must be mutual and common to both parties to the deed; the unambiguous deed must fail to express the obvious intention of the parties; and the mutual mistake must be proved by strong, clear and convincing evidence." Granting mixed relief, and affirming the circuit court's order with regard to ingress/egress and occasional use of a parking lot. Reversing that portion of the circuit court's order that prevented the plaintiffs from continuing to use the parking lot for an annual three-day weekend "apple butter festival."

STATE ex rel. DEPT. OF TRANSPORTATION, DOH, et al. v. COOKMAN, et al., No. 33095 (BENJAMIN, J.)(Davis, C.J., dissenting)(Starcher, J., concurring in part and dissenting in part)(December 1, 2006). Dept of Highways sought a writ of prohibition to prevent disclosure of certain appraisal reports and other materials utilized by non-testifying experts in a condemnation matter. Declining to address questions presented by interplay with federal law, and granting moulded relief to require the circuit court upon remand to make the requisite "exceptional circumstances" findings required for disclosure of material under Rule Civ. P. 26(b)(4)(B).

BOARD OF EDUCATION OF THE COUNTY OF KANAWHA v. WV BOARD OF EDUCATION, et al., No. 33081 (MAYNARD, J.)(Starcher, J., dissenting)(Albright, J., dissenting)(December 4, 2006). The Kanawha County School Board appealed an order of the Circuit Court of Kanawha County that granted summary judgment in favor of the West Virginia Board of Education and the State Superintendent. The Kanawha Board unsuccessfully sought to have its local share, for purposes of computation of the state school funding formula, reduced by the amount of the county's regular tax levy which is statutorily required to go the county's public library system (just over $2.2 million per year). Reversing, and holding that the circuit court incorrectly applied the rational basis test to evaluate an equal protection challenge involving the fundamental right to a thorough and efficient education. Applying the strict scrutiny test to find that the lack of uniformity in the educational funding statute violates equal protection by improperly increasing the calculation of local share by funds that are required by law to be diverted to public libraries in certain counties. Staying the effect of the Court's decision until the beginning of the next fiscal year, July 1, 2007, to permit a possible resolution by the Legislature.

JERRILL DAVIS, ET AL. v. EAGLE COAL AND DOCK COMPANY, ET AL., No. 33054 (MAYNARD, J.)(Davis, C.J. disqualified)(Johnson, Judge, sitting by temporary assignment)(December 4, 2006). Answering certified questions arising from the Circuit Court of Mingo County, in the context of a dispute over whether state law tort claims could proceed against the manufacturer of roof bolting systems used in underground coal mines. Holding that state law tort claims are not preempted by federal law in this context.

STATE ex rel. VALLEY RADIOLOGY, INC., DBA VALLEY RADIOLOGIST v. HON. MARTIN J. GAUGHAN, JUDGE, No. 33173 (ALBRIGHT, J.)(November 29, 2006). Defendants below sought a writ of prohibition to prevent enforcement of an order of the Circuit Court of Ohio County granting a new trial solely on the issue of damages, where the jury found liability but made no award of damages for lost wages or pain and suffering. Denying the writ, and holding that the plaintiffs did not waive their right to seek relief from the verdict on the grounds of inadequacy by refusing the trial court's offer to have the jury deliberate further on the issue of damages. Further holding that an objection to the verdict form is distinct from an objection to adequacy of damages, and thereby clarifying the general waiver rule of COMBS V. HAHN, 205 W.Va. 102, 516 S.E.2d 506 (1999).

STATE ex rel. THOMAS TAYLOR, et al. v. HON. DAVID W. NIBERT, JUDGE, et al., No. 33175 (MAYNARD, J.)(Davis, C.J., disqualified)(Stone, Judge, by temporary assignment)(November 30, 2006). Petitioners -- who were plaintiffs in actions pending in Marshall and Jefferson Counties -- sought to prohibit enforcement of an order of the Circuit Court of Roane County transferring their case under Rule 42(b), without prior notice. The Roane County court had certified a mandatory punitive damages class action arising out of 1993 and 1999 mass mailings by Nationwide Mutual Insurance Company, on the basis of a "limited punishment" theory. Granting the writ of prohibition, and holding that transfer was not appropriate because the cases are not logically related such that it can be said that they arose out of the same transaction or occurrence. Further addressing notice and hearing requirements in syllabus point 4: "When a motion is made to have an action transferred pursuant to Rule 42(b) of the West Virginia Rules of Civil Procedure, the movant must give notice to all parties in the case(s) to be transferred. The parties in the case(s) to be transferred must be given the opportunity to object prior to the transfer and if requested, the transferring court shall hold a hearing to determine whether transfer is proper under Rule 42(b)."