PAINTER v. COLEMAN, No. 30255 (Albright, J.)(June 7, 2002).

Affirming an order of the Circuit Court of Fayette County in favor of beneficiaries, against challenge by those who would benefit under intestate succession. Rejecting contention that testator's will failed to properly devise the estate.

LOCKHART v. AIRCO HEATING and COOLING, Inc., No. 29961 (Maynard, J.)(May 31, 2002).

Affirming a grant of summary judgment entered in the Circuit Court of McDowell County in favor of defendants in a wrongful death action. Appellant alleged that Airco negligently caused the decedent to "become extremely cold and catch pneumonia" during the installation of a new heating system, and as a result, the decedent died a month thereafter. Holding that the circuit court was correct in concluding that Airco owed no duty of care with regard to the health of the decedent. Further holding that mere breach of contract cannot sustain an action in tort. "A tort, although growing out of a contract, must nevertheless posses all of the essential elements of tort." Syl. pt. 10.

LAWYER DISCIPLINARY BOARD v. BARBER, No. 26519 (Per Curiam)(McGraw, J., concurring in part and dissenting in part)(June 7, 2002).

In a modified opinion, imposing a sixty-day suspension in lawyer disciplinary matter involving repayment of a loan from a client. The loan having been settled when the original opinion was filed, the Court refused a petition for rehearing, with a modified opinion to issue. Modifying the sanction to make clear that respondent is suspended for sixty days, with automatic reinstatement, and further clarifying that respondent is not required to pay the costs of the proceeding.

BD. of TRUSTEES of the POLICE OFFICERS PENSION and RELIEF FUND of the CITY of WHEELING v. CARENBAUER, No. 30102 (Maynard, J.)(May 31, 2002).

Reversing an order entered in the Circuit Court of Ohio County regarding the applicability of W.Va. Code 8-22-24(d) to a municipal police officer whose pension vested prior to the statutory change in 1991. Holding that appellant demonstrated constitutional impairment of contract through detrimental reliance on the prior statute, and that he could not be compelled to produce tax returns nor have his disability pension reduced by $1 for every $3 of income earned in excess of $7,500.

IN RE MARRIAGE/CHILDREN OF: BETTY L.W. v. WILLIAM E.W., No. 30189 (Per Curiam)(Maynard, J., dissenting)(June 7, 2002).

Affirming an order of the Circuit Court of Taylor County that denied a petition to modify child support based upon new cellular evidence disproving paternity. In light of appellant's admission of paternity and existence of a divorce decree with the same admission, as well as the passage of time and other factors, lower court's determination is affirmed.

G.M. v. R.G., No. 30020 (Per Curiam)(June 7, 2002).

Reversing an order of the Circuit Court of Lewis County that would have precluded appellant from presenting DNA evidence showing that he was not the biological father in response to appellee's request for increase in child support. Holding that the circuit court erred in failing to allow appellant to present evidence regarding whether appellant's initial acknowledgment of paternity was induced by fraudulent conduct. If clear and convincing evidnce of such fraud exists, the circuit court is directed to reconsider the question of paternity.

BOSSIE v. BOONE COUNTY BOARD of EDUCATION, No. 30118 (Maynard, J.)(May 31, 2002).

Answering certified question from the Circuit Court of Kanawha County. Holding that once a county board of education selects a qualified applicant to fill a vacancy for a properly noticed job and that selection is rescinded within the time period prescribed by W.Va. Code 18A-4-7a, if more than one applicant meets the qualifications, the board is legally bound to choose a successor from the original list of applicants.

FRYE v. FUTURE INNS of AMERICA, Inc., et al., No. 30091 (Maynard, J.)(Starcher, J., dissenting)(May 31, 2002).

Affirming an order entered in the Circuit Court of Kanawha County on review of a decision by the Human Rights Commission. Rejecting Commission's argument that respondents may be jointly and severally liable for incidental damages awarded. Holding that the limit of an award of incidental damages under Bishop Coal v. Salyers, 181 W.Va. 71, 380 SE2d 238 (1989) applies per case rather than per respondent.

COLLINS, et al. v. SOUTHWORTH, No. 30112 (Davis, C.J.)(June 7, 2002).

Answering a certified question from the United States District Court for the Southern District of West Virginia. Syllabus Point 2: "Prior to the filing of a prospective judicial proceeding, a party to a dispute is absolutely privileged to publish defamatory matter about a third person who is not a party to the dispute only when (1) the prospective judicial action is contemplated in good faith and is under serious consideration; (2) the defamatory statement is related to the prospective judicial proceeding; and (3) the defamatory matter is published only to persons with an interest in the prospective judicial proceeding."

BUTCHER v. MILLER, No. 30251 (Per Curiam)(Davis, C.J. and Maynard, J., dissenting)(Albright, J., concurring)(June 7, 2002).

Reversing an order of the Circuit Court of Wetzel County that upheld an administrative revocation of appellant's driver's license for one year for failure to submit to a designated chemical breath test to determine whether he was driving while impaired. Finding that appellant was improperly advised of the consequences of his refusal to take the chemical test (which was mandatory, rather than discretionary, revocation), and therefore restoring appellant's driver's license.

STATE v. SWIMS, No. 30099 (Davis, C.J.)(Maynard, J. dissenting)(Starcher, J., concurring)(June 7, 2002).

Reversing an order of the Circuit Court of Boone County that denied a defendant's motion for new trial following convictions for conspiracy and aggravated robbery with 120 year sentence. Holding that circuit court erred in failing to redact certain language contained in a plea agreement introduced as evidence at trial, setting forth guidelines for testimonial and evidentiary uses of plea agreements, and remanding for new trial.

SER OGDEN NEWSPAPERS, Inc., etc. v. WILKES, et al., No. 30248 (Per Curiam)(Davis, C.J. and Maynard, J., dissenting)(Starcher, J., concurring)(June 7, 2002).

Denying a writ of prohibition sought to prohibit an order of the Circuit Court of Berkeley County that would permit plaintiff's counsel to represent a party with interests adverse to those of Ogden in matters related to the work the attorneys had done for Ogden while they were associates at the law firm of Steptoe & Johnson. Holding that mandatory disqualification pursuant to Rule 1.9 was not warranted, in view of the fact that "we do not find a substantial relationship between the two representations which would trigger the presumption that relevant confidential information was disclosed and disqualification is therefore warranted."