Issue #77 covers 4 opinions released Tuesday, May 10th 2005, including a decision that significantly changes the procedure for obtaining sanctions under Rule 37 of the Rules of Civil Procedure, effective immediately.

CATTRELL COMPANIES, INC. v. CARLTON, INC., et al., No. 31730 (DAVIS, J.)(May 10, 2005). Granting mixed relief from an order of the Circuit Court of Tyler County that granted judgment to plaintiff as a sanction against the defendants for discovery violations, pursuant to Rules 37(b) and (d) of the Rules of Civil Procedure. Addressing the scope of duty owed after an order to compel is entered, but before seeking sanctions, and holding that a party who has successfully obtained an order compelling discovery has a duty to act in good faith with the opposing party when the opposing party seeks clarification of what is sought under the order compelling discovery. As is the case in many federal district courts, requiring a party moving for sanctions under Rule 37(b) to "file with the motion an affidavit certifying that the attorney has conferred with opposing counsel and worked in good faith to resolve the issues raised in the motion but was unsuccessful." (Syl.pt.4) Surveying federal court interpretations of Rule 37(d), and adopting the less strict interpretation to hold that "Under appropriate circumstances, a party may be sanctioned under Rule 37(d) of the West Virginia Rules of Civil Procedure for failing to attend a deposition notwithstanding the fact that the party cancelled the deposition. The factors to be considered in determining whether sanctions are appropriate are: (1) the timing of the cancellation; and (2) whether good cause for the cancellation has been shown." (Syl.pt.5) Modifying syllabus point 1 of CHANDOS, INC. v. SAMSON, 150 W. Va. 428, 146 S.E.2d 837 (1966), and holding that "Before a circuit court may impose the sanction of dismissal or default judgment under Rule 37(d) of the West Virginia Rules of Civil Procedure for a party's failure to attend a deposition, the court must first make a finding that the party's failure was due to willfulness or bad faith. Once this finding has been made, the circuit court must then weigh the following factors to determine if default judgment or dismissal is an appropriate sanction: (1) the degree of actual prejudice to the other party; (2) the effectiveness of less drastic sanctions; and (3) any other factor that is relevant under the circumstances presented." (Syl.pt.6). Modifying the sanctions imposed by the circuit court, and requiring defendants to pay the plaintiff's attorney's fees and costs of the appeal. The Court further directed that the mandate be issued forthwith, meaning that the opinion becomes effective immediately.

WV DEPT. of TRANSP., DIV. of HIGHWAYS v. ROBERTSON, et al., No. 31770 (DAVIS, J.)(Albright, C.J., dissenting)(Benjamin, J., disqualified)(Jolliffe, Judge, by temporary assignment)(May 10, 2005). Granting mixed relief from an order of the Circuit Court of Logan County that granted partial summary judgment to landowner, after finding that the metes and bounds description of property in a deed that had been subject to condemnation was incorrect, that additional property should have been included, with a reformed deed directed to be provided, all of which would have the effect of requiring DOT to compensate the landowner for coal minerals underlying an additional 22.33 acres, as opposed to only 11.08 acres. Holding the DOT's injury-in-fact gave it standing to appeal the order, and clarifying that WV DEPT. of HIGHWAYS v. RODA, 177 W. Va. 383, 352 S.E.2d 134 (1986) does not stand for the principle that the extent of ownership of condemned land is determined on the date of the take. Adopting and applying the doctrine of judicial estoppel to preclude the landowner's assertion of a contrary position regarding the extent of ownership than had been asserted two years earlier when a partial final order had been entered. "Judicial estoppel bars a party from re-litigating an issue when: (1) the party assumed a position on the issue that is clearly inconsistent with a position taken in a previous case, or with a position taken earlier in the same case; (2) the positions were taken in proceedings involving the same adverse party; (3) the party taking the inconsistent positions received some benefit from his/her original position; and (4) the original position misled the adverse party so that allowing the estopped party to change his/her position would injuriously affect the adverse party and the integrity of the judicial process. " (Syl.pt.2)

LUIKART, et al. v. MOTORISTS MUTUAL INSURANCE CO., No. 31867 (Per Curiam)(May 10, 2005). Affirming an order of the Circuit Court of Putnam County that found insurance coverage did not exist under the exclusionary language of the commercial general liability policy at issue. Holding that the exclusions were sufficiently disclosed, and that the doctrine of reasonable expectations does not apply, and the insurer had no duty to offer stop gap coverage.

WARE, et al. v. HOWELL, No. 31973 (Per Curiam)(Starcher, J., concurring)(May 10, 2005). Reversing an order of the Circuit Court of Randolph County that set aside a jury verdict in favor of the plaintiff in a will contest and granted a new trial to the defendant. Holding that the circuit court erred in determining that a witness who testified via deposition, and whose testimony contradicted the attestation clause in question, was not credible. Further holding that the circuit court erred in determining that there was insufficient opportunity to investigate and inquire into the credibility of the witness, since the defendant's counsel had full opportunity to conduct cross-examination during the deposition.