Issue #80 of the West Virginia Supreme Court Opinion Summaries was posted today, covering twenty-eight opinions issued in the January 2005 term of court.

IN RE: ELIZABETH A., et al., Nos. 31761 and 32166 (Per Curiam)(June 10, 2005). Reversing orders of the Circuit Court of Roane County that dismissed abuse and neglect petitions filed by DHHR. Holding that the hearing failed to adequately protect the rights of the children involved, and that the guardian ad litem and the DHHR were not given a meaningful opportunity to introduce substantive evidence or obtain additional testing necessary to determine the best interests of the children.

IN RE: MARK LEE McMILLIAN'S ELIGIBILITY FOR CONDITIONAL ADMISSION TO THE PRACTICE OF LAW, No. 32267 (Per Curiam)(Starcher, J., concurring)(Davis, J., disqualified)(Maynard, J., disqualified)(Frazier, Judge, by temporary assignment)(Hoke, Judge, by temporary assignment)(June 21, 2005). Affirming a recommendation by the Board of Law Examiners that a prospective attorney should be conditionally admitted to practice.

FRYE v. FRYE, et al., No. 32160 (Per Curiam)(Albright, C.J., dissenting)(June 30, 2005). Affirming a final decision by the Circuit Court of Hampshire County in a dissolution action. Holding that the circuit court correctly determined that the plaintiff below was properly issued certain stocks and paid valuable consideration therefore. Rejecting cross-assignments of error by the plaintiff below relating to denial of an award of attorney's fees and entitlement to compensation for years of unpaid service.

STATE EX REL. SEXTON v. VICKERS, No. 32649 (Per Curiam)(June 30, 2005). Denying a writ of prohibition sought to prohibit retrial on all offenses, where misdemeanors had previously been improperly treated as felony offenses. Holding that where the conviction and sentence are set aside and held to be void upon the motion of the defendant, double jeopardy objections are waived.

STATE v. DENVER YOUNGBLOOD, JR., No. 31765 (Per Curiam)(Davis, J., dissenting)(Starcher, J., dissenting)(Maynard, J., concurring)(June 24, 2005). Affirming jury convictions obtained in the Circuit Court of Morgan County for two counts of sexual assault, two counts of brandishing a firearm, one count of wanton endangerment involving a firearm and one count of indecent exposure. The convictions arose from allegations that the defendant abducted three young women and twice sexually assaulted one of them. Rejecting the defendant's argument that an uncharged collateral act was improperly introduced, in light of the fact that the incident was part of the fabric of the underlying charges, and therefore outside the customary Rule 404(b) analysis. Holding that the use of a stun belt under the defendants clothing during voir dire, without the prior knowledge of the court or either counsel, was not prejudicial error. Finally holding that the circuit court properly denied a motion for new trial, in light of the fact that certain evidence the defendant argued to be exculpatory was in effect impeachment evidence that did not justify granting a new trial.

STATE v. HARRY DAVID LEONARD, No. 31857 (Per Curiam)(Albright, C.J., dissenting)(Starcher, J., concurring in part and dissenting in part)(Maynard, J., concurring)(June 21, 2005). Affirming a jury conviction for first degree murder, with no recommendation of mercy, obtained in the Circuit Court of Jackson County. Holding that the circuit court correctly declined to instruct the jury on voluntary manslaughter, as the evidence did not support it, and further in light of the fact that the appellant declined the instruction and presented a defense that someone else strangled his 78 year-old mother.

STATE v. JAMES AARON COOPER, II, No. 31766 (Per Curiam)(June 17, 2005). Affirming conviction following a jury trial in the Circuit Court of Cabell County for two counts of aiding and abetting a robbery, and further affirming the trial court's denial of a motion for new trial. Rejecting, inter alia, allegations that the prosecution withheld exculpatory evidence. Rejecting a post-trial challenge to bond revocation as untimely.

WEST VIRGINIA HUMAN RIGHTS COMM'N, et al. v. THE ESQUIRE GROUP, INC., No. 32165 (Per Curiam)(Davis, J., dissenting)(Starcher, J., concurring)(June 30, 2005). Reversing orders of the Circuit Court of Cabell County that dismissed a discriminatory housing practices complaint. Holding that the circuit court erred in concluding that the housing discrimination claim was barred by res judicata as having been adjudicated in a prior restrictive covenant proceeding. Further concluding that the reasonable accommodation issues were prematurely decided. Remanding for further proceedings.

VANCE v. WEST VIRGINIA BUREAU OF EMPL. PROGRAMS, ELKINS JOB SERVICE, No. 32162 (Per Curiam)(June 17, 2005). Affirming an order of the Circuit Court of Kanawha County that affirmed a grievance board ruling. Holding that the involuntary transfer at issue substantially complied with rules promulgated by the agency.

NAPOLEON S., et al. v. WALKER, SEC'Y, WV DEPT. HEALTH and HUMAN SERVICES, No. 32046 (ALBRIGHT, C.J.)(Starcher, J., concurring)(Maynard, J., dissenting)(June 10, 2005). Reversing an order of the Circuit Court of Kanawha County that affirmed the agency decision not to permit the appellants to adopt their grandson. Construing the preference for grandparent adoption pursuant to W. Va. Code 49-3-1(a) as incorporating a best interests of the child analysis. Holding that the presumption of grandparent placement being in the best interests of the child may be overcome only where the record reviewed in its entirety establishes that such placement is not in the best interests of the child.

TINA B. v. PAUL S., etc., No. 31855 (DAVIS, J.)(Maynard, J., dissenting)(Benjamin, J., concurring in part and dissenting in part)(June 17, 2005). Reversing an order of the Circuit Court of Clay County that had reversed a family court order granting custody of a child to a psychological parent rather than the maternal grandparents. For about two and a half years, the appellant had raised the child from infancy with her partner the natural mother, who was killed in a car accident, whereupon the maternal grandparents obtained custody by way of guardianship. Defining the term of psychological parent, thereby modifying the Court's prior decision of IN RE BRANDON L.E., 183 W.Va. 113, 394 S.E.2d 515 (1990). Holding that a psychological parent has standing to intervene in a custody proceeding in certain exceptional cases, as provided in WV Code 48-9-103(b), where the circuit court makes a discretionary determination that intervention is likely to serve the best interests of the child. Holding that the appellant is a fit psychological parent, and awarding permanent custody of the child to her.

METZ v. METZ, No. 32517 (Per Curiam)(June 30, 2005). Reversing a decision of the Circuit Court of Wood County. The circuit court reversed a family court order that required the appellant's former husband to pay the appellant a sum equal to the final health insurance premium that Mr. Metz had paid for the first thirty-six months following the parties' divorce. Holding that the circuit court was incorrect to conclude that the family court lacked jurisdiction to consider the issue of payment for health insurance, and remanding with directions to reinstate the family court's order.

WEBSTER COUNTY SOLID WASTE AUTHORITY v. BRACKENRICH & ASSOC., INC., et al., Nos. 31861 & 31862 (ALBRIGHT, C.J.)(June 30, 2005). Affirming a decision by the Circuit Court of Webster County regarding insurance coverage available under a commercial general liability policy. Holding, in syllabus point 3, that: "Rather than providing coverage for a product or work performance that fails to meet contractual requirements, the commercial general liability policy is specifically designed to insure against the risk of tort liability for physical injury to persons or property sustained by third parties as a result of the product or work performed or damages sustained by others from the completed product or finished work. Because faulty workmanship claims are essentially contractual in nature, they are outside the risks assumed by a traditional commercial general liability policy." Further holding, in syllabus point 4: "The inclusion in a standard commercial general liability policy of language that excludes coverage for 'professional liability' is specifically designed to shift the risk of liability for claims arising in connection with the performance of professional services away from the insurance carrier and onto the professional."

HOLLOMAN v. NATIONWIDE MUTUAL INS. CO., No. 32286 (BENJAMIN, J.)(Starcher, J., concurring)(June 21, 2005). Answering certified questions arising from the Circuit Court of Greenbrier County, concerning the collateral effect of the Court's prior decision in DODRILL v. NATIONWIDE MUTUAL INS. CO., 210 W.Va. 1, 491 S.E.2d 1 (1997) in the context of a UTPA action. Holding, in syllabus point 4, that: "Collateral estoppel will not apply in a statutory cause of action for violation of W. Va. Code 33-11-4(9) to establish an insurer's 'general business practice' where there is credible evidence on the record in the action at bar that the insurer altered its general business practice between the time the insurer handled the claim underlying the prior general business practice finding and the time the claim or claims at issue in the subsequent litigation were handled."

SATTERFIELD v. ERIE PROPERTY AND CASUALTY, No. 32511 (ALBRIGHT, C.J.)(June 30, 2005). Reversing an order of the Circuit Court of Pleasants County that granted summary judgment to the insurer in connection with an issue of coverage that involves the "newly acquired auto clause" in a commercial auto policy. Analyzing the unambiguous policy language to conclude that the commercial auto policy fails to exclude coverage under the "newly acquired auto clause" upon the occurrence of the inclusion of a new vehicle on a separate policy issued by the appellee Erie. Holding, in syllabus point 4, that: "Where an insured who holds more than one automotive insurance policy with the same insurer acquires an additional vehicle, the named inclusion of the additional vehicle on one insurance policy does not operate to remove coverage extended by the 'newly acquired auto clause' in a separate policy, barring language that expressly terminates coverage in such circumstance or requires the insured to make an election as to the specific policy under which coverage is sought."

COLUMBIA CASUALTY CO. v. WESTFIELD INSURANCE CO., No. 31941 (STARCHER, J.)(June 10, 2005). Answering a certified question from the United States Court of Appeals for the Fourth Circuit regarding liability coverage under a policy issued to the Randolph County Commission for claims made against the commission by the estates of two inmates who committed suicide in the Randolph County jail. Holding that the determination of whether an occurrence was or was not an accident should be made primarily from the perspective of the insured whose coverage under the policy is at issue. Concluding that from the perspective of the commission, the inmate suicides were not deliberate, intentional, expected, desired or foreseen, and were therefore "accidents" and thus "occurrences" under the policy language in question.

STATE EX REL. TERMNET MERCHANT SERVICES, INC. v. JORDAN, et al., No. 32652 (ALBRIGHT, C.J.)(June 30, 2005). Granting moulded prohibition relief from monetary contempt sanctions imposed for failure to answer interrogatories in aid of execution of a default judgment. Addressing an issue not raised by the parties below, namely, whether the circuit court had authority to act. Holding that the plaintiff below failed to comply with the required statutory procedure prior to issuing the interrogatories, and, therefore, the circuit court lacked authority to impose contempt sanctions. Holding, in syllabus point 4, that: "The fundamental statutory requirements for properly instituting an interrogatory proceeding in aid of execution of a judgment pursuant to West Virginia Code 38-5-1 (1923) (Repl. Vol. 1997) include: the existence of an outstanding, unsatisfied writ of fieri facias or execution issued by the clerk of the circuit court; issuance of a summons by the circuit clerk which directs the judgment debtor to appear before a named commissioner at a specific time and place in order to answer questions under oath about the judgment debtor's estate; and service of the summons."

IN RE: PETITION OF KENNTH D. DONLEY, etc., No. 32531 (Per Curiam)(Albright, C.J., concurring)(June 30, 2004). Affirming an order of the Circuit Court of Mercer County that affirmed an administrative driver's license revocation. Holding that a three-year delay between entry of a guilty plea and receipt by the Commissioner of an abstract of the judgment does not constitute a violation of the 180-day time limit set forth in W. Va. Code 17-5A-2(b), which is triggered by the request for a hearing, not the arrest or conviction.

BURKES v. FAS-CHECK FOOD MART INC., No. 31777 (STARCHER, J.)(June 24, 2005). Reversing an order of the Circuit Court of Kanawha County that dismissed a civil complaint for failure to effect proper service within the 120-day time period provided by Rule 4(k) of the Rules of Civil Procedure. Agreeing with the circuit court's conclusion that service was initially imperfect, but holding that the circuit court erred in finding that good cause did not exist for granting an extension of time to perfect service. Holding that service of process on a domestic corporation under W.Va. Code 31D-5-504(c) is insufficient when a registered or certified mailing of the process or notice is neither accepted nor refused by an agent or employee of the corporation. Clarifying the factors to be considered in determining whether good cause exists under Rule 4(k) to grant an extension of time to perfect service. Clarifying that the Court's prior holding in syllabus point 3 of STATE EX REL. CHARLESTON AREA MEDICAL CENTER v. KAUFMAN, 197 W.Va. 282, 475 S.E.2d 374 (1996) should be viewed as modified by the 1998 amendment to Rule 4(k), to the extent that KAUFMAN may be read as not permitting a trial court to extend the period for service of process without a showing of good cause.

LAWYER DISCIPLINARY BOARD v. L. THOMAS LAKIN, No. 30559 (Per Curiam)(June 23, 2005). Adopting sanctions recommended by the Hearing Panel Subcommittee, and imposing a one-year suspension, with supervision and other conditions.

LAWYER DISCIPLINARY BOARD v. J. THOMAS HARDIN, No. 31678 (Per Curiam)(June 23, 2005). Modifying sanctions recommended by the Hearing Panel Subcommittee, which recommended a permanent bar on respondent handling any medical malpractice cases, and imposing a two-year suspension, with supervision and other conditions.

FRANCIS v. BRYSON, No. 32289 (Per Curiam)(June 10, 2005). Affirming an order of the Circuit Court of Raleigh County, that conditioned possession of real property upon payment to tenants for improvements to the property. Holding that the trial court's determination was not clearly erroneous.

ARNAZZI v. QUAD/GRAPHICS, INC., et al., No. 31860 (Per Curiam)(Albright, C.J., concurring)(Maynard, J., dissenting)(Benjamin, J., dissenting)(June 17, 2004). Reversing an order of the Circuit Court of Berkeley County that granted summary judgment to defendant employer in a deliberate intent action. Holding that the evidence relating to proximate cause was sufficiently disputed to warrant resolution by jury.

SPENCER v. McCLURE, et al., No. 32057 (Per Curiam)(Starcher, J., dissenting)(June 15, 2005). Affirming an order of the Circuit Court of Kanawha County that granted judgment as a matter of law to some defendants in a multiple car accident case. Holding that the circuit court properly determined that there was insufficient evidence to show that the third impact to the plaintiffs was a proximate cause of specific injuries to the plaintiffs.

SYDENSTRICKER v. MOHAN, Nos. 32158 & 32159 (DAVIS, J.)(June 30, 2005). Affirming an order of the Circuit Court of Raleigh County that denied plaintiff's motion for new trial following a jury verdict for the defendant in a medical malpractice action. The plaintiff had been treated by two physicians, one of whom, Dr. Lucero, settled prior to trial. Holding that the circuit court correctly permitted the defendant to introduce evidence of Dr. Lucero's negligence at trial, pursuant to Rule 105 of the Rules of Evidence, deeming it unnecessary to consider the impact of footnote 5 of ROWE v. SISTERS OF PALLOTINE MISSIONARY SOCIETY, 211 W.Va. 16, 560 S.E.2d 491 (2001). Holding in syllabus point 1, that: "Evidence that is admissible as to one party or for one purpose may not be excluded merely because it is not admissible for another party or for another purpose. When such evidence is admitted, however, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly as required by Rule 105 of the West Virginia Rules of Evidence." Such evidence was proper in order to permit Dr. Mohan to assert the legitimate defense of intervening cause. Further concluding that the trial court properly admitted evidence that the plaintiff continued to be treated by Dr. Mohan even after the medical malpractice claim was filed, holding, in syllabus point 2: "A defendant who continues to be the treating physician for a plaintiff after the plaintiff files a medical malpractice complaint against him/her, may testify regarding his/her post-complaint treatment of the plaintiff, so long as the probative value of the testimony is not substantially outweighed by the danger of unfair prejudice pursuant to Rule 403 of the West Virginia Rules of Evidence." Dismissing as moot Dr. Mohan's petition for appeal, and cautioning that the better practice for prevailing parties is to file a cross-assignment of error pursuant to Rule 10(f) of the Rules of Appellate Procedure.

COLLINS v. HEASTER, et al., No. 31971 (BENJAMIN, J.)(Albright, C.J., dissenting)(Starcher, J., concurring in part and dissenting in part)(June 21, 2005). Affirming an order of the Circuit Court of Harrison County that dismissed a "John Doe" claim against an insurance company. Holding that a person must have express or implied permission of the named insured or the insured's spouse to operate or move a motor vehicle before coverage is triggered. Further holding, in syllabus point 3: "Where a person moves a vehicle from the "zone of danger" of a fire, the implied consent of the vehicle's owner is not presumed such that liability coverage under the policy of insurance insuring the vehicle would be triggered to cover that person's negligent operation of the vehicle pursuant to the provisions of the omnibus statute, W. Va. Code 33-6-31(a)(1998)." Finally holding, in syllabus point 4: "Where a person alleges injuries caused by a John Doe defendant in a motor vehicle accident, recovery for damages caused by the John Doe is limited to recovery under the injured person's own uninsured motorist policy of insurance."

PRICE v. CHARLESTON AREA MEDICAL CENTER, INC., et al., No. 31774 (BENJAMIN, J.)(Albright, C.J., dissenting)(Starcher, J., dissenting)(June 24, 2005). Reversing an order of the Circuit Court of Kanawha County that denied plaintiff's motion for new trial following an adverse jury verdict in a medical malpractice action against three separate defendants. The trial court granted each of the defendants three peremptory challenges from the panel of twenty potential jurors. Setting forth guidelines for trial courts to apply when considering whether to allow separate peremptory challenges under Rule 47(b) of the Rules of Civil Procedure. Remanding for a new trial.

CALVERT, et al. v. SCHARF, et al., Nos. 31788, 31789 and 31790 (DAVIS, J.)(Maynard, J. and Benjamin, J., disqualified)(Jolliffe, Judge, by temporary assignment)(June 30, 2005). Answering a reformulated certified question arising from the Circuit Court of Kanawha County in an action for attorney malpractice in the drafting of a will. Declining to adopt a rule that would require lawyers to draft litigation-proof documents, and holding, in syllabus point 2, that: "Direct, intended, and specifically identifiable beneficiaries of a will have standing to sue the lawyer who prepared the will where it can be shown that the testator's intent, as expressed in the will, has been frustrated by the negligence of the lawyer so that the beneficiaries' interest(s) under the will is either lost or diminished." Further holding that the plaintiffs failed to establish that any negligence resulted in and was the proximate cause of loss to the plaintiffs.