Issue #79 of the West Virginia Supreme Court Opinion Summaries was posted today, covering nineteen opinions filed late in the January term. In the next two issues, the final opinions of the January term will be covered. For activities on the docket this month, and for links to briefs in cases set for argument, check the September calendar.

LILLY v. STUMP, COMM'R, No. 31945 (Per Curiam)(May 31, 2005). Reversing an order of the Circuit Court of Raleigh County that overturned an administrative driver's license revocation. Holding that there was nothing to conflict the testimony given by the officer, and although there was a lack of foundational testimony about training to administer field sobriety tests, substantial evidence was presented to support the administrative revocation.

STANLEY v. DEPT. of TAX and REVENUE, et al., Nos. 31859, 31868 and 31944 (STARCHER, J.)(May 26, 2005). Granting mixed relief in three combined proceedings arising as appeals from circuit court decisions that had been appealed from administrative grievance board decisions. Holding, in syllabus point 1, that: "In a multiple-employee grievance proceeding to which W.Va. Code, 29-6A-10 [1998] applies, the statutory attorney fee award limits apply per employee - that is, to the attorney fees of each employee - and not per grievance." Applying principles of statutory construction to conclude that the later-enacted statute applies, and holding in syllabus point 2 that: "In court appeals of grievance proceedings under W.Va. Code, 18-29-1 et seq., pursuant to W.Va. Code, 18-29-8 [1992] a prevailing employee is entitled to recover reasonable attorney fees and court costs that are not subject to the attorney fee limitation set forth in W.Va. Code, 18A-2-11 [1985]."

WVU/RUBY MEMORIAL HOSP. v. WV HUMAN RIGHTS COMM'N, et al., No. 31759 (Per Curiam)(Starcher, J., dissenting)(May 13, 2005). Affirming an order of the Circuit Court of Kanawha County that reversed a final decision of the WVHRC, and concluded that WVU did not discriminate against the claimant and that acts by the claimant's immediate supervisor, an employee of West Virginia University Hospitals, Inc., could not be imputed to WVU. Rejecting a procedural objection made by the claimant to an argument presented before the agency by WVU, because the claimant waived that issue by not raising it before the WVHRC and the circuit court. Finding no evidence that WVU discriminated against the claimant, and no error in the circuit court's conclusion with regard to imputed discrimination.

STATE EX REL. BILLUPS, et al. v. CLAWGES, et al., No. 32513 (ALBRIGHT, J.)(May 26, 2005). Denying a writ of prohibition sought by plaintiffs in medical malpractice action, to prevent enforcement of an order refusing to disqualify a defense expert who had previously been contacted by plaintiff's counsel, had reviewed the file, and had declined to issue a screening certificate of merit. Addressing the issue of first impression, and holding that the circuit court correctly adopted an applicable rule of law that balances the interests, as set forth in syllabus point 3: "In cases where disqualification of an expert witness is sought, the party moving for disqualification bears the burden of proving that at the time the moving party consulted with the expert: (1) it was objectively reasonable for the moving party to have concluded that a confidential relationship existed with the expert; and (2) confidential or privileged information was disclosed to the expert by the moving party. Disqualification is warranted only when the evidence satisfactorily demonstrates the presence of both of these conditions." Applying the new rule, and holding that the circuit court correctly concluded that the plaintiff failed to meet the second prong of the test.

STATE EX REL. WALKER, et al. v. MENTAL HYGIENCE COMM'RS, etc., No. 32514 (STARCHER, J.)(May 27, 2005). Granting a moulded writ of prohibition to prevent a practice in the state mental hygiene system whereby persons for whom there has not been a probable cause determination would be automatically sent to state psychiatric hospitals by virtue of a "blanket" court order. Holding that under W.Va. Code 27-5-2, proceedings should be conducted in a manner that minimizes detention prior to a probable cause determination. Addressing the issue of cooperation and standing orders in syllabus point 2: "W.Va. Code, 27-5-2(e) [2003] does not authorize the circuit courts to issue a standing order that generally authorizes the pre-probable cause detention at a state psychiatric hospital of individuals who are the subject of a mental hygiene petition filed within the circuit, without the exhaustion of other alternatives and a specific and compelling reason being shown in an individual case for requiring such detention at a state hospital. A circuit court, after consultation with the department of health and human resources, county officials and local law enforcement, and the community mental health center(s) serving the circuit's geographic area, may enter a standing order pursuant to W.Va. Code, 27-5-2(e) [2003] that provides that where after a review of all other alternatives in an individual case it is determined that no other option than detention at a state psychiatric hospital is reasonably feasible, such detention may be ordered in an individual case under reasonable terms and conditions."

EVANS GEOPHYSICAL, INC. v. RAMSEY ASSOCIATED PETROLEUM, INC, No. 31746 (Per Curiam)(May 18, 2005). Affirming an order of the Circuit Court of Gilmer County, in an action to enforce an out-of-state default judgment, that voided the Michigan judgment for lack of sufficient personal jurisdiction over the appellant. Holding that under Michigan law, the appellee's limited contact with the state - consisting of a one-time negotiation for the limited purpose of conducting a seismic survey in West Virginia - did not provide sufficient grounds on which to establish personal jurisdiction.

SINKEWITZ v. CITY OF HUNTINGTON, No. 32053 (Per Curiam)(May 13, 2005). Reversing an order of the Circuit Court of Wayne County that directed the city to permit the continued operation of a bar/tavern in a residential area of the city. Holding that a prior decision of the circuit court upholding the constitutionality of the city zoning ordinance was res judicata as to the subsequent suit between the same parties involving the same ordinance.

SER VEDDER v. ZAKAIB, et al., No. 32266 (MAYNARD, J.)(Starcher, J., concurring)(Benjamin, J., concurring)(May 16, 2005). Denying a writ of mandamus sought to compel the circuit court to grant a motion to amend a complaint to allege a cause of action for spoliation of evidence. Holding, in syllabus point 3, that: "The liberality allowed in the amendment of pleadings pursuant to Rule 15(a) of the West Virginia Rules of Civil Procedure does not entitle a party to be dilatory in asserting claims or to neglect his or her case for a long period of time. Lack of diligence is justification for a denial of leave to amend where the delay is unreasonable, and places the burden on the moving party to demonstrate some valid reason for his or her neglect and delay." Although the petitioner moved to amend the complaint in April 2004, after the June 2003 decision in HANNAH v. HEETER, 213 W.Va. 704, 584 S.E.2d 560 (2003), there was no legal impediment to bringing a spoliation claim when the complaint was originally filed in January 2002: "Contrary to Petitioner's assertion, therefore, she should have been aware of the existence of a cause of action for spoliation of evidence prior to this Court's decision in Hannah v. Heeter."

IN RE: MAGISTRATE WILLIAM TOM TOLER, MAGISTRATE FOR WAYNE COUNTY, No. 31797 (Per Curiam)(Starcher, J., dissenting)(June 1, 2005). Following jury acquittal on criminal charges that gave rise to judicial disciplinary charges, holding that in light of the differing standards of proof between criminal actions and disciplinary actions, the motion to reinstate with back pay should be held in abeyance until the Judicial Hearing Board can render its recommended decision, and that decision can be considered by the Court.

LAWYER DISCIPLINARY BOARD v. GERALDINE ROBERTS, No. 31511 (Per Curiam)(May 31, 2005). Determining that violations of the Rules of Professional Conduct were sufficiently proven, and modifying the disciplinary sanctions recommended by the Hearing Panel Subcommittee, with the respondent to be reprimanded and undergo supervised practice, with several conditions.

LAWYER DISCIPLINARY BOARD v. KEVIN A. WADE, No. 31613 (Per Curiam)(May 26, 2005). Adopting a Hearing Panel Subcommittee recommendation that the respondent's law license be annulled after clear and convincing evidence established multiple violations of the Rules of Professional Conduct, with no mitigating circumstances and several aggravating circumstances.

RICHARDS, et al. v. HARMAN, et al., No. 31942 (MAYNARD, J.)(June 10, 2005). Granting mixed relief from an order of the Circuit Court of Tucker County in a dispute over a mechanics lien. Holding that the Legislature contemplated a limited period of time for preserving and perfecting mechanics' liens, and that there is a requirement of continuity with respect to a contractor's work in order for a lien to relate back to the commencement of construction, and that the work must be of such nature that it is reasonably apparent that both the prior and current work are directly connected and are all part of the same project.

STATE EX REL. BROWN, et al. v. THE CORPORATION OF BOLIVAR, et al., No. 32532 (Per Curiam)(May 26, 2005). Granting a moulded writ of mandamus to compel the town council to approve a subdivision plat. Applying W.Va. Code 39-1-16 under the circumstances of the case, and concluding that because the town council did not raise any valid concern that the development would "impede or prevent further development" of the municipality, the plat must be approved. Refusing petitioner's request for compelled issuance of building permits, and further refusing petitioner's request for attorney's fees.

WELLINGTON POWER CORP v. CAN SURETY CORP., et al., Nos. 31869 & 31870 (MAYNARD, J.)(Albright, C.J., dissenting)(Starcher, J., dissenting)(May 16, 2005). Answering a certified question from the Circuit Court of Monongalia County with regard to the validity of a pay-if-paid condition precedent clause in a contract between a subcontractor and a contractor. Holding that the principle of freedom to contract should be enforced as the more compelling public policy than the policy of securing payments to materialmen and laborers, and the pay-if-paid clause should therefore be enforced.

IN RE: ESTATE OF ELIZABETH A. LEWIS, No. 31778 (STARCHER, J.)(May 20, 2005). Reversing an order of the Circuit Court of Fayette County that directed payment of interest on estate tax overpayments. Holding that provisions of the West Virginia Tax Procedure and Administration Act apply in the estate tax context. Further holding in syllabus point 8 that that: "Under W.Va. Code, 11-10-14 and W.Va. Code, 11-10-17, a 'claim for refund' is made on the date the State receives a taxpayer's written notification that clearly demands repayment to the taxpayer of either a specific amount of taxes previously paid, or an amount definitely ascertainable by mathematical calculation." Reversing the circuit court's conclusion that interest on the overpayment was required as just compensation under constitutional takings principles, because the power to tax is solely vested in the Legislature, as a constitutional power separate and distinct from the condemnation power. Upholding the statutory ninety-day grace period, and given the fact that the tax commissioner paid the refund within 13 days of receiving the claim for refund, holding that no interest was due the Estate.

STUMP, et al. v. CHEMTALL, et al., No. 31776 (Per Curiam)(Albright, C.J., concurring)(Starcher, J., concurring)(Davis, J. and Benjamin, J., disqualified)(Judge Pratt and Judge Wilson, by temporary assignment)(May 31, 2005). Reversing an order of the Circuit Court of Marshall County that denied a motion to intervene in a pending class action for medical monitoring for asymptomatic coal preparation plant workers arising out of alleged chemical exposure to an industrial water cleaner. The putative intervenors were plaintiffs in a similar action pending in the Circuit Court of Boone County. Pursuant to the constitutional authority to exercise general supervisory control over the courts, holding that the Boone County action be transferred to Marshall County, and that the plaintiffs in the Boone County action be permitted to intervene in the pending Marshall County action pursuant to Rule 24(b)(2) of the Rules of Civil Procedure.

HERBERT J. THOMAS MEMORIAL HOSP. v. BD. OF REVIEW of the WEST VIRGINIA BUREAU of EMPLOYMENT PROGRAMS, et al., No. 32054 (Per Curiam)(Starcher, J., dissenting)(June 10, 2005). Reversing an order of the Circuit Court of Kanawha County that affirmed an administrative ruling that an employee who committed theft was nevertheless entitled to receive unemployment compensation benefits. Holding that the plain statutory language mandates that theft be considered gross misconduct, therefore requiring the unemployment compensation benefits be denied.

IPI, Inc. v. BURTON, et al., No. 31858 (MAYNARD, J.)(Starcher, J., dissenting)(May 16, 2005). Reversing an order of the Circuit Court of Kanawha County that upheld an administrative decision regarding successor liability for workers' compensation debt. Clarifying, in syllabus point 2, that: "The phrase "substantially all" in W.Va. Code 23-2-14(b) (2003), regarding the determination of successor liability under the Workers' Compensation Act, means all but an insignificant amount." Further holding that IPI did not acquire substantially all of North American's assets, and that IPI rebutted the presumption of ownership by showing that it did not acquire real estate, or substantially all of North American's employees and equipment.