The Court released four opinions today, including CATTRELL COMPANIES, INC v. CARLTON, INC, et al., a decision clarifying the process for obtaining sanctions under Rule 37 of the Rules of Civil Procedure. The Court directed that the mandate in CATTRELL issue forthwith, which means that the decision is effective immediately. Full summaries will be posted tomorrow.

CONCEPT MINING, INC., et al. v. HELTON, No. 31866 (Per Curiam)(Benjamin, J., disqualified)(Wilson, Judge, by temporary assignment)(April 28, 2005). Affirming on order of the Circuit Court of Kanawha County, and holding that an administrative decision, made under a prior statutory scheme, was not appealable by the tax commissioner.

Opinion Summary Issue #76 has been posted, covering 9 additional opinions released through the end of April.

MULLEN v. DIV. MOTOR VEHICLES, No. 31740 (STARCHER, J.)(March 17, 2005). Granting mixed relief from an order of the Circuit Court of Ohio County that expunged DMV administrative records of a driver's license suspension. Holding, in syllabus point 2, that "W.Va. Code, 61-11-25 [2000], as it pertains to West Virginia Division of Motor Vehicles ("DMV") records, does not authorize the expungement of records of substantive determinations and actions by the DMV that did not result as a matter of law from the fact of a DUI criminal arrest, charge, or conviction."

STATE v. KENNETH Y., No. 31742 (Per Curiam)(Davis, J., concurring)(March 22, 2005). Remanding to the Circuit Court of Jackson County for resentencing, to permit a juvenile the opportunity to comment upon alternative sentencing arrangements, holding that denying the defendant a right to allocution constituted plain error.

BD. OF ED. OF RANDOLPH COUNTY v. SCOTT, et al., No. 31691 (Per Curiam)(Per Curiam)(February 16, 2005). Reversing an order of the Circuit Court of Kanawha County that affirmed a grievance board decision that determined the board to be in error by posting an Aide II position with the additional requirement of licensure as a practical nurse. Holding that the board properly exercised its discretion to consider job-related factors (including the students' medical needs) in addition to the specific statutory qualifications.

BUDA, et al. v. TOWN of MASONTOWN, No. 31779 (Per Curiam)(March 22, 2005). Affirming an order of the Circuit Court of Preston County in a declaratory judgment action relating to notice requirements prior to approval of a new sewer system to which citizens in an unincorporated area a short distance outside of town would be compelled to connect. Holding that the mandatory connection to the town's new sewer system authorized by statute did not constitute a taking for constitutional purposes, and that the appellants were not due personal notice and a hearing under constitutional due process principles. Further holding that W.Va. Code 8-18-3 did not require notice because that code section is not applicable to the financing of the sewer system in question.

LUCAS, et al. v. FAIRBANKS CAPITAL CORP., et al., Nos. 31744 & 31745 (DAVIS, J.)(Albright, C.J. and Starcher, J., concurring in part and dissenting in part)(March 18, 2005). Answering certified questions from the Circuit Court of Lincoln County arising from a putative class action lawsuit alleging improper loan servicing and foreclosure activities. Answering two reformulated certified questions in the negative: Does the trustee in a trust deed given as security in connection with a home mortgage loan owe a fiduciary duty to the signatories of the trust deed to, prior to foreclosing under W. Va. Code § 38-1-3 (1923) (Repl. Vol. 1997), (1) review account records to ascertain the actual amount due, or (2) consider objections to foreclosure raised by the trust grantor? --AND-- Does the principle that equity abhors a forfeiture require creditors in a deed of trust, or their representatives, to pursue remedies that are not set out in the deed of trust, or any relevant statutes, to attempt to cure a default prior to pursuing a foreclosure under W. Va. Code § 38-1-3? Holding that while a trustee in a trust deed given as security in connection with a home mortgage loan does owe a fudiciary duty to the signatories of the trust deed, that duty does not encompass certain acts. Further holding that the trustee may not consider a trust grantor's objections to the foreclosure sale, " Instead, where the trust grantor wishes to challenge a foreclosure, the proper remedy is for the grantor to seek an injunction or to file an action to have the foreclosure sale set aside. ". (Syl.pt.3, in part).

TOLLEY v. CARBOLINE COMPANY, et al., No. 31751 (Per Curiam)(Starcher, J., dissenting)(March 18, 2005). Affirming an order of the Circuit Court of Kanawha County that granted summary judgment in favor of defendants in a personal injury action. Holding that the Court's prior decision in TOLLEY I, 212 W. Va. 548, 575 S.E.2d 158 (2002), relating to the insufficiency of evidence establishing proximate cause in the deliberate intent cause of action, was properly applied on remand to the negligence cause of action. Further holding that additional evidence produced on remand, including "a classic example of a sham affidavit," did not establish a genuine issue of material fact.

BOOKER, et al. v. FOOSE, et al., No. 31769 (Per Curiam)(March 15, 2005). Affirming an order of the Circuit Court of Kanawha County that granted summary judgment in favor of a defendant in a nuisance action. Holding that while the neighbor's actions may have caused inconvenience or even outrage, those actions did not arise from unreasonable use of property, which is the crux of a private nuisance claim.

PLUMLEY v. BLEDSOE, No. 31764 (STARCHER, J.)(March 17, 2005). Affirming an order of the Circuit Court of Raleigh County. Holding, in syllabus point 2, that: "The remedy of a 'predecease presumption' that is set forth in W.Va. Code, 42-4-2 [1931] is also applicable in cases applying West Virginia's common-law 'slayer rule.'" Further holding, in syllabus point 3, that: "West Virginia's common-law 'slayer rule' incorporates the equitable and 'rule of law' exceptions to the 'predecease presumption' that is set forth in W.Va. Code, 42-4-2 [1931]."