Summaries of 34 opinions of the Supreme Court of Appeals of West Virginia issued in the closing days of the September 2004 term were posted today, completing the summaries of all opinions issued in the previous term of court. These summaries comprise the content of Issue #74 of the e-mail opinion summary service. [Subscribe to the e-mail service here. Alternatively, subscribe to the RSS feeds for: Recent Opinions, Civil Topics, Criminal Topics or Family Topics. To learn more about courts and RSS feeds, read this explanation.]

The January 2005 term of court commences tomorrow with a full Motion Docket and Argument Docket. As a new feature, the briefs in cases set for argument are now posted online, approximately two weeks prior to the scheduled argument. Visit the relevant Argument Docket link on the Court's main calendar page to see the list of available briefs.

Finally, as usual, tomorrow's appellate proceedings will be webcast live.

IN RE: DEJAH ROSE P., No. 31710 (Per Curiam)(Starcher, J., disqualified)(December 1, 2004). Affirming an order of the Circuit Court of Harrison County that terminated the parental rights of a mother to her daughter, due to the mother's failure to fully comply with the terms of her post-adjudicatory improvement period, and because the time required for her recovery from addiction was uncertain, and because there was no reasonable likelihood that the conditions of abuse or neglect could be corrected in the near future. Rejecting the appellant's contention that she should have been allowed a gradual reunification with her daughter, under appropriate supervision, while completing a voluntary drug treatment program. Holding that the circuit court acted within its discretion, based upon extensive findings of fact.

IN RE: ADOPTION OF WILLIAM ALBERT B., et al., No. 31728 (Per Curiam)(McGraw, J., dissenting)(December 8, 2004). Reversing an order of the Circuit Court of Tyler County holding that a father had abandoned his three children, and allowing the children to be adopted by their maternal grandparents, while at the same time the children were the subject of a pending custody dispute in a divorce action between their parents filed in the Family Court of Ritchie County. Holding that the evidence does not support a presumption that the appellant abandoned his children as set forth in WV Code 48-22-306, and that he followed the proper, established legal route to obtain custody and visitation with his children. Remanded for further proceedings.

McMAHON, et al. v. ADVANCED TITLE SERVICES COMPANY OF WEST VIRGINIA, et al., No. 31706 (STARCHER, J.)(December 3, 2004). Answering certified questions from the Circuit Court of Brooke County in a class action involving alleged unauthorized practice of law in connection with providing real estate title and closing services. Holding, in syllabus point 1, that: "A party who has suffered or may likely suffer a legally cognizable injury, wrong, or other actionable violation of his or her personal legal rights and interests as a proximate result of the unlawful and unauthorized practice of law by another has standing to assert a claim alleging such unlawful and unauthorized practice and seeking relief appropriate to the actual or threatened injury, wrong, or violation." Holding further that a sufficiently precise and undisputed factual record does not exist to permit the Court to make a determination as to what is or is not the unauthorized and unlawful practice of law, and remanding for further proceedings, including directions that the circuit court may allow other stakeholders to intervene, if appropriate, to assert their interests.

WEST VIRGINIA CEMETARY AND FUNERAL ASSOCIATION, et al. v. PUBLIC SERVICE COMM'N, No. 31719 (Per Curiam)(December 8, 2004). Granting mixed relief from an order of the Public Service Commission, relating to rules promulgated by the PSC pursuant to WV Code 24F-1-1 et seq., to regulate the installation of certain markers that the United States Veterans Administration provides free of charge to families of qualified veterans. Holding that the statute directing the promulgation of the rules is quite narrow in scope with ample guidance and standards provided by the Legislature and therefore is not an unconstitutional delegation of Legislative power. Further holding that the PSC failed to follow established procedure in promulgating the rules, and directing a new hearing to be conducted, with the current limits to remain in effect until the new rules have been issued.

PERDUE et al., v. WISE, et al., No. 31749 (ALBRIGHT, J.)(December 1, 2004). Reversing an order of the Circuit Court of Kanawha County that upheld the constitutionality of the Pension Liability Redemption Act, W.Va. Code 12-8-1 to -16. Disagreeing with the lower court's conclusion that the unfunded accrued actuarial liability in various state pension programs constitutes a "previous liability of the State" and holding that the act is unconstitutional in that implementation of its provisions would result in a violation of the debt clause set forth in section four, article ten of the West Virginia Constitution.

STATE v. BRIAN BUSH FERGUSON, No. 31720 (Per Curiam)(December 3, 2004). Affirming a conviction for first degree murder, without mercy, following a jury trial in the Circuit Court of Monongalia County. Rejecting numerous assignments of error, holding that statements were properly admitted as excited utterances, that the defendant opened the door to references to his pre-trial silence, and that sufficient evidence existed to support the verdict.

STATE v, JAMES REGINALD JONES, II, No. 31590 (Per Curiam)(December 3, 2004). Reversing a conviction for two counts of second degree murder following a jury trial in the Circuit Court of McDowell County. Holding that post-polygraph test statements admitted at trial were obtained in violation of the defendant's right to counsel and right to remain silent. Holding that a defendant's voluntary waiver of rights in order to take a polygraph test does not automatically extend to the post-test interview, where the police, without notice to the defendant's counsel, may conduct an interrogation "that would under any other circumstances be utterly unthinkable."

STATE v. MARYBETH DAVIS, No. 31679 (per Curiam)(Starcher, J., dissenting)(December 2, 2004). Affirming an order of the Circuit Court of Greenbrier County that denied a motion for new trial based upon after-discovered evidence. Holding that the trial court did not abuse its discretion in denying the motion, in light of the fact that the evidence was available but not obtained by the appellant prior to trial, and was cumulative evidence that would not bring about a different result at a second trial.

STATE v. KRISTY DONLEY, No. 31649 (ALBRIGHT, J.)(December 2, 2004). Reversing a conviction for eight counts of concealing a minor child following a jury trial in the Circuit Court of Hancock County. Holding that the admission of a family court order in its entirety was an abuse of discretion, where the probative value of the entire text of the order, which contained the family court judge's comments of a stern and condemning nature, was substantially outweighed by the danger of unfair prejudice. Setting forth standards for admission of a family court order pursuant to Rule 403 of the Rules of Evidence. Remanding for a new trial.

STATE v. MICHAEL O'DELL DENNIS, No. 31578 (ALBRIGHT, J.)(December 1, 2004). Granting mixed relief in an appeal from the Circuit Court of Ohio County after a jury convicted the appellant of kidnapping, second degree robbery, two counts of second degree sexual assault, violating a domestic violence protective order and domestic battery. Holding that sexual assault in the second degree and robbery may constitute continuing offenses for purposes of exercising territorial jurisdiction in a criminal prosecution, if the facts demonstrate that at least one substantial or material element of the alleged crime occurred within this state as part of a sequential chain of events. Further holding that once a trial court has determined as a matter of law that the elemental act or consequence at the heart of the evidence would be sufficient to establish jurisdiction, the jury should determine whether the evidence demonstrates beyond a reasonable doubt that the act or consequence at issue actually occurred within the borders of the state. Because the jury had been instructed at trial to make this determination by a preponderance of the evidence, reversing the robbery and sexual assault convictions. Rejecting the remaining assignments of error, and remanding for further proceedings.

STATE v. MICHAEL WAYNE FISKE, No. 31714 (Per Curiam)(December 1, 2004). Reversing an order imposing two concurrent 2 to 10 year sentences for the offenses of forgery and uttering. Appellant wrote a $33.92 check on an account registered in his grandfather/adoptive father's name, and returned to the store later in the day to retrieve the check. The account had been closed, and the check was not presented for payment. The grandfather testified at trial that he may have authorized the expense, and that he did not believe the appellant had intended to defraud him or that he had been prejudiced in any way by the appellant's actions. Holding that the evidence adduced by the State was inadequate to establish the State's burden of establishing prejudice or intent to prejudice the rights of another beyond a reasonable doubt, and that the circuit court erred in failing to enter a judgment of acquittal.

ADKINS v. CLINE, etc. -AND- ARBAUGH v. CLINE, etc., Nos. 31693 & 31694 (Per Curiam)(December 1, 2004). Affirming orders of the Circuit Court of Lincoln County that reversed administrative license revocations and remanded for further administrative determinations In light of CHOMA v. DMV, 210 WV 256, 557 SE2d 310 (2001). Though technically moot, holding that open-ended stays of revocation previously ordered by the circuit court were erroneous, and directing that any similar pending cases proceed to resolution as soon as practicable, and that no additional stays in violation of WV Code 17C-5A-2 should be ordered. Clarifying the prospectivity of the Court's holding in CHOMA, which should be applied in any judicial determination of administrative license revocation made after November 28, 2001, the date when the opinion in CHOMA was filed.

STATE v. TOMMY ROHRBAUGH, No. 31618 (DAVIS, J.)(Starcher, J., concurring)(December 1, 2004). Reversing an order of the Circuit Court of Grant County that restored the fight to bear a firearm to a convicted felon. Holding that the circuit court erred in applying the pre-2000 version of WV Code 61-7-7; although the appellant completed his sentence in 1997, the amended statute is regulatory only and therefore does not violate constitutional ex post facto principles and must be applied. Because the 2000 version of the statute precludes those convicted of felony sexual offenses from petitioning for restoration of firearm rights, the circuit court erred in granting the petition. Further holding that the statute is constitutional as a narrowly-tailored exercise of the police power by the Legislature.

SPRADLING, et al. v. WV BUREAU EMPL. PROG., etc., No. 31682 (Per Curiam)(December 3, 2004). Affirming an order of the Circuit Court of Kanawha County that affirmed a grievance board decision that denied a grievance by five employees who were denied temporary classification upgrades. Holding that the outside consultants did not exercise undue influence or supplant the authority of the decisionmaker, who used a tiered interview process which was within his discretion.

CARR v. HANCOCK, No. 31752 (STARCHER, J.)(December 3, 2004). Affirming an order of the Circuit Court of Kanawha County that refused a petition for appeal from a family court final order. Setting forth the standard of review in such cases, and holding that the circuit court did not abuse its discretion in refusing the petition for appeal.

ARNEAULT v. ARNEAULT, No. 31772 (Per Curiam)(McGraw, J., disqualified)(Spaulding, Judge, by temporary assignment)(December 2, 2004). Reversing an order of the Circuit Court of Hancock County that denied a request by the wife for suit money, temporary support and an advance share of the marital assets to maintain her customary and usual standard of living. Holding that the appellant is entitled to pendent elite support and immediate attorney's fees. Remanding for further proceedings.

IN RE: MASON v. MASON, No. 31741 (ALBRIGHT, J.)(December 1, 2004). Reversing an order of the Circuit Court of Kanawha County that affirmed the family court's adoption of a mediated parenting plan from which the appellant had withdrawn her consent. Holding that pursuant to Rule 42(c) of the Rules of Family Court Procedure, either party is free to withdraw his or her consent to a mediated agreement prior to the adoption of that agreement by the family court. Barring bilateral consent, there is no basis for the family court to adopt a mediated agreement.

SER CARLOS FIELDS v. McBRIDE, No. 31798 (Per Curiam)(December 1, 2004). Denying a writ of habeas corpus sought by inmate at Mount Olive Correctional Center in connection with an alleged denial of good time credit and physical abuse by prison guards. Finding that the record presented to the Court did not demonstrate that the administrative remedies set forth in W. Va. C.S.R. 90-9-3 et seq. had been fully exhausted, and therefore declining to address the merits of the issues presented.

WEHNER, et al. v. WEINSTEIN, et al., Nos. 31736, 31737 & 31738 (Per Curiam)(Starcher, J., disqualified)(Spaulding, Judge, by temporary assignment)(December 1, 2004). Reversing an order of the Circuit Court of Monongalia County that granted summary judgment to an insurer and denied a motion to amend the complaint to include a bad faith claim. Construing an ambiguous provision in one policy and reviewing the unambiguous provisions of a second policy, and holding that the policies issued to the national fraternity of Sigma Phi Epsilon did provide coverage for the acts of members and pledges, and that the plaintiffs should have been given leave to amend the complaint.

ASHBY v. CITY of FAIRMONT, No. 31715 (DAVIS, J.)(McGraw, J., dissenting)(December 2, 2004). Affirming an order of the Circuit Court of Marion County that dismissed as untimely filed a petition for appeal from a final order of a police civil service commission. Holding that the petition was untimely filed, and that the appellant could not subsequently seek a writ of mandamus, as the two remedies are mutually exclusive under WV Code 8-14-20(b).

LAWYER DISCIPLINARY BOARD v. JAMES F. SIGWART, II, No. 30727 (Per Curiam)(December 2, 2004). Granting a petition for immediate suspension for failure to comply with a prior order of the Court regarding supervised practice.

CROWLEY, et al. v. KRYLON DIVERSIFIED BRANDS, et al., No. 31723 (STARCHER, J.)(December 3, 2004). Reversing an order of the Circuit Court of Kanawha County that granted a default judgment for plaintiffs, after service of process upon the corporate defendant by certified mail through the Secretary of State was neither accepted or refused by the defendant's agent for service of process, but rather was returned as undeliverable. Holding that the pre-2002 statute governing the issue must be read in light of 2002 amendments, now contained in WV Code 31D-15-1510, that legally sufficient process is achieved when a registered or certified mailing by the Secretary of State to an authorized corporation's listed agent is returned as either accepted or "refused" by the agent - and not when the return is due to the postal service's inability to locate the agent.

WITHROW v. WILLIAMS, No. 31726 (Per Curiam)(December 2, 2004). Affirming an order of the Circuit Court of Kanawha County that dismissed an action for failure to serve the summons and complaint within the time required under Rule 4(l) of the Rules of Civil Procedure. Holding that the actions of the appellant's former lawyer did not constitute a fraud upon the court under Rule 60(b), and that the appellant failed to show good cause for the delay of service under Rule 4(l).

LAURITA, et al. v. MORAN, et al., No. 31695 (Per Curiam)(McGraw, J., dissenting)(Albright, J., dissenting)(December 3, 2004). Affirming an order of the Circuit Court of Marion County that adopted the report of partition commissioners regarding the division of approximately sixty-eight acres of land with approximately 523,000 tons of coal underlying the property. Holding that the commissioner's recommendation that a north-south division was fair and equitable because both parties would receive equal amounts of underground coal, with the Lauritas to receive the southern portion, because it was adjacent to a tract they independently owned, did not result in a grossly unequal allotment.

FLANAGAN, et al. v. STALNAKER, d/b/a GREENWOOD RIG CO., No. 31716 (Per Curiam)(December 1, 2004). Granting mixed relief from an order of the Circuit Court of Calhoun County in a dispute between appellants, who claim to be entitled to free surplus gas pursuant to a 1990 lease which states that the lessors may take free surplus gas for use "in one dwelling house on said land", and the appellee, an oil and gas lessee who currently operates a well on the appellants' property. The circuit court held that the appellants were not entitled to free surplus gas, denied the appellants' claim for damages, awarded $1 in nominal damages to the appellee for interference with his right to use the surface, enjoined further interference, and awarded $812 in attorney fees to the appellees. Holding that the circuit court erred in concluding that the 1990 lease was supplemental to a prior lease, rather than a separate contract, and the appellants are therefore entitled to free surplus gas under the 1990 lease, which permitted the drilling of a specific type of well on the appellant's property not authorized under the 1918 lease. Affirming the remaining holdings of the circuit court.

KANAWHA EAGLE COAL, LLC v. TAX COMM'R, No. 31791 (ALBRIGHT, J.)(McGraw, J., dissenting)(December 1, 2004). Reversing an order of the Circuit Court of Kanawha County that affirmed an administrative decision of the Tax Commissioner, in a case involving excess freight charges paid by Kanawha Eagle to transport coal from a coal preparation plant to a river dock in West Virginia, where the coal was loaded onto barges for final shipment to the buyer. The Tax Commissioner disallowed the freight charge deductions taken in severance tax documentation submitted by Kanawha Eagle for amounts paid to CSX Railroad to transport coal from its preparation plant to the river dock. Holding that costs paid to third parties associated with transporting coal from a preparation plant to a river dock are deductible in determining the value of coal in making a severance tax assessment. Further holding, in syllabus point 4: "The initial loading of fully processed clean coal at the preparation plant for shipment is one of the specified activities viewed as a taxable event associated with the privilege of mining in this state. However, any reloading of coal that transpires after the initial loading at the preparation plant is part of the delivery process, rather than the mining process, and accordingly falls outside of the statutorily delineated activities that qualify as part of the taxable treatment processes performed upon coal set forth in West Virginia Code § 11-13A-4(a)(1) (1987) (Repl. Vol. 2003)."

IN RE: FLOOD LITIGATION, No. 31688 (MAYNARD, C.J.)(McGraw, J., disqualified)(Clawges, Judge, by temporary assignment)(December 9, 2004). Addressing certified questions from the Mass Litigation Panel appointed to preside over lawsuits arising from July 8, 2001 floods in several counties in southern West Virginia. Holding, in syllabus point 2: "In determining whether a landowner acted reasonably in dealing with surface water pursuant to the [base "]reasonable use[per thou] rule set forth in Syllabus Point 2 of MORRIS ASSOCIATES, INC. v. PRIDDY, 181 W.Va. 588, 383 S.E.2d 770 (1989), a jury generally should consider all relevant circumstances, including such factors as amount of harm caused, foreseeability of harm on the part of the landowner making alteration in the flow of surface waters, the purpose or motive with which the landowner acted, etc." Holding, in syllabus point 9: "Compliance of a landowner in the extraction and removal of natural resources on his or her property with the appropriate state and federal regulations may be evidence in any cause of action against the landowner for negligence or unreasonable use of the landowner's land if the injury complained of was the sort the regulations were intended to prevent. Such compliance, however, does not give rise to a presumption that the landowner acted reasonably or without negligence or liability to others in his or her extraction and removal activities." Further holding, in syllabus point 10: "Where a rainfall event of an unusual and unforeseeable nature combines with a defendant's actionable conduct to cause flood damage, and where it is shown that a discrete portion of the damage complained of was unforeseeable and solely the result of such event and in no way fairly attributable to the defendant's conduct, the defendant is liable only for the damages that are fairly attributable to the defendant's conduct. However, in such a case, a defendant has the burden to show by clear and convincing evidence the character and measure of damages that are not the defendant's responsibility; and if the defendant cannot do so, then the defendant bears the entire liability. To the extent that our prior cases such as STATE EX REL. SUMMERS v. SIMS, 142 W.Va. 640, 97 S.E.2d 295 (1957); RIDDLE v. BALTIMORE & O. R. CO., 137 W.Va. 733, 73 S.E.2d 793 (1952), and others similarly situated held differently, they are hereby modified."

RICHARDSON v. KENTUCKY NATIONAL INSURANCE CO., No. 31658 (STARCHER, J.)(McGraw, J., disqualified)(Swope, Judge, by temporary assignment)(December 3, 2004). Reversing an order of the Circuit Court of Raleigh County that submitted the question of the amount of reasonable attorney's fee to the jury in litigation by a policyholder against an insurer to enforce an insurance contract. Holding, in syllabus point 3, that when a policyholder substantially prevails in a first-party bad faith action and becomes entitled to a reasonable attorney's fee under HAYSEEDS and its progeny, the amount of the attorney's fee is to be determined by the circuit judge and not by the jury, and setting forth guidance for determining the amount of the fee.

BOWYER v. HI-LAD INC., etc., et al., No. 31697 (Per Curiam)(Maynard, C.J., dissenting)(Davis, J., dissenting)(December 3, 2004). Granting mixed relief from an order of the Circuit Court of Kanawha County upholding a jury verdict in favor of the plaintiff below, and holding the appellant liable for intercepting the private conversations of an employee through the use of hidden microphones in the workplace, and awarding compensatory and punitive damages. Holding that the jury's verdict was supported by the evidence and should be affirmed. While there was no direct evidence that the appellant intercepted the plaintiff's conversations, there was sufficient circumstantial evidence for the jury to conclude that the plaintiff's conversations were intercepted as defined in WV Code 62-1D-2(e). Holding further that the circuit court was correct to deny the appellant's attempt to seek contribution or indemnification from the company that manufactured and installed the microphones. Holding that the circuit court erred, however, in determining that the appellant's commercial general liability policy did not provide coverage or a duty to defend.

BOGGS, etc. v. CAMDEN-CLARK MEMORIAL HOSPITAL CORPORATION, et al., No. 31757 (McGRAW, J.)(Maynard, C.J., dissenting)(December 8, 2004). Reversing an order of the Circuit Court of Wood County that denied a motion for leave to amend a complaint alleging medical malpractice and several other claims, such as fraud, for failure to provide the defendants with properly executed certificates of merit a full thirty days prior to filing suit. Holding that the plaintiff should have been permitted to amend his complaint under Rule 15 of the Rules of Civil Procedure, and that the 2003 changes to the Medical Professional Liability Act are therefore inapplicable to this case. Further holding that the circuit court erred in dismissing all of the appellant's claims, including the non-medical malpractice claims, because of the delay in serving the certificates of merit. Stating, in syllabus point 3: "The West Virginia Medical Professional Liability Act, codified at W. Va. Code § 55-7B-1 et seq., applies only to claims resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient. It does not apply to other claims that may be contemporaneous to or related to the alleged act of medical professional liability."

SER CHEMTALL INCORPORATED, et al. v. MADDEN, et al., No. 31743 (MAYNARD, J.)(Starcher, J., concurring)(McGraw, J., concurring in part and dissenting in part)(Davis, J., disqualified)(Pratt, Judge, by temporary assignment)(December 2, 2004). Granting a moulded writ of prohibition sought by corporate defendants in a case arising from an order of the Circuit Court of Marshall County that certified a seven-state class action for medical monitoring and punitive damages arising out of the alleged exposure to polyacrilamide by coal preparation plant workers and their offspring. Holding that the lower court erred in failing to conduct the proper analysis to determine what law to apply to the putative class members, and in failing to conduct a thorough analysis with detailed findings regarding whether Rule 23(a) requirements were met, and in ruling that no statute of limitations is applicable, and in proposing subclasses to handale variations in state laws. Setting forth guidance regarding accrual of medical monitoring causes of action. Holding that the record presented did not require the class to be restricted only to workers exposed in West Virginia.

ELAM, et al. v. MEDICAL ASSURANCE of WEST VIRGINIA, INC., No. 31656 (Per Curiam)(December 2, 2004). Affirming an order of the Circuit Court of Raleigh County that granted a motion to dismiss health care providers' insurers from a complaint alleging medical professional negligence and unfair trade practices. Holding that the clear statutory language of the 2002 amendments to WV Code 55-7B-5 prohibits a plaintiff who files a medical professional liability action from filing an independent cause of action against any insurer of the health care provider who was sued, absent privity of contract, and that the statutory amendments applied to the proposed amended complaint. Moreover, the proposed amendments do not relate back to the original date of filing of the complaint. Accordingly, the plaintiff's bad faith claim is barred.

HUMPHREYS & ASSOCIATES, L.C. v. BOARD of REVIEW, WEST VIRGINIA BUREAU OF EMPLOYMENT PROGRAMS, et al., No. 31731 (Per Curiam)(Maynard, C.J., concurring)(Albright, J., concurring)(December 1, 2004). Reversing an order of the Circuit Court of Kanawha County that affirmed an administrative decision relating to unemployment compensation benefits. The circuit court agreed with the agency's determination that the appellant's former employee had been discharged from employment, but not for misconduct, and was therefore eligible to receive unemployment compensation benefits under the provisions of WV Code 21A-6-3. Holding that the agency and the circuit court were clearly wrong, because the testimonial evidence, taken in conjunction with the affidavits filed by the employer, clearly establishes the conclusion that the former employee did assault fellow employees in the course of her employment, at her employer's place of business -- such conduct, under WV Code 21A-6-3(2), does constitute misconduct sufficient to disqualify an individual seeking unemployment compensation benefits.

STATE v. MYRA LEA ANGELL, et al., No. 31787 (ALBRIGHT, J.)(Davis, J., disqualified)(Hutchison, Judge, by temporary assignment)(December 1, 2004). Granting a moulded writ of prohibition to permit Workers' Compensation Commission fraud unit lawyers who have been properly appointed to act as assistant prosecuting attorneys to proceed with the prosecution of case. Holding, in syllabus point 2: "The appointment by county prosecuting attorneys, pursuant to the provisions of West Virginia Code 7-7-8 (1987) (Repl. Vol. 2003), of attorneys employed by the Workers' Compensation Commission to serve as assistant prosecutors for prosecution of workers' compensation fraud and abuse cases does not of itself violate due process principles." Emphasizing the need for a written protocol to insure that the civil investigation process and prosecutorial process are separated.