Today I posted summaries of all seventy opinions issued by the Court during the January 2006 term of court. No opinions have been issued thus far in the current term.

STATE EX REL. BLACKHAWK ENTERPRISES, INC., et al. v. BLOOM, et al., No. 33050 (Per Curiam)(June 16, 2006). Denying a writ of prohibition sought to disqualify plaintiff's counsel in an action alleging corporate waste, where plaintiff's counsel had drafted corporate documents. Holding that the circuit court was correct to deny the defendants' motion to disqualify, in light of counsel's express statements to defendants that he was not representing them in any way and that they needed to retain their own counsel.

KEVIN ALDEN v. THE HARPERS FERRY POLICE CIVIL SERVICE COMMISSION, et al., No. 32762 (Per Curiam)(March 31, 2006). Affirming an order of the Circuit Court of Jefferson County that granted a partial award of attorney fees to litigant who successfully secured his right to a pre-termination hearing. Holding that litigant was entitled to fees not on a statutory basis -- which required reinstatement or exoneration, neither of which occurred here -- but instead relying on STATE EX REL. WEST VIRGINIA HIGHLAND CONSERVANCY, INC., v. WEST VIRGINIA DIV. OF ENVIRONMENTAL PROTECTION, 193 W.Va. 650, 653, 458 S.E.2d 88, 91 (1995), and syllabus point 3 of RICHARDSON v. TOWN OF KIMBALL, 176 W.Va. 24, 340 S.E.2d 582 (1986).

HOLLY D. HELDRETH V. DR. ALI A. RAHIMIAN AND REGIONAL WOMEN[base ']S HEALTH CARE, INC., No. 32779 (ALBRIGHT, J.)(Davis, C. J., and Benjamin, J., concurring)(Maynard, J., dissenting)(February 21, 2006). Reversing an order of the Circuit Court of Harrison County that applied a straight percentage reduction of attorney's fees in a Human Rights Act case, based upon the fact that the plaintiff succeeded on only one of five claims. Remanding to permit the circuit court to make an award of reasonable attorney's fees by applying appropriate factors, and offering additional guidance for making a statutory fee award where complainant and counsel have previously entered into a contingency fee agreement. Holding, in syllabus point 6, that: "While fee structures that involve a contingent-fee arrangement are clearly enforceable despite the existence of a fee-shifting statute, attorneys are not entitled to receive both the statutory fee award and the full amount of the contingent fee."

IN RE: BRANDON LEE H.S., No. 32872 (Per Curiam)(April 6, 2006). On appeal from a contempt order issued by the Circuit Court of Berkeley County against the West Virginia Department of Health and Human Resources for failing to take action to alleviate a Child Protective Services staffing crisis in the eastern panhandle. Finding that inclusion of directives pertaining generally to the issue of hiring additional personnel for existing vacancies did not render the order unenforceable, but that other mandates, such as geographic pay differentials, improperly invade the province of the executive branch's jurisdiction over the salaries of its employees. Holding that DHHR has fully complied with the portions of the contempt ruling that were within the power and authority of the court to impose. Remanding for entry of an order finding that DHHR has purged itself of the contempt.

IN THE MATTERS OF: MEGAN B., AMBER G. B., WILLIAM Z. Q. B., AND SHEEHAN B., No. 32722 (Per Curiam)(February 17, 2006). Reversing an order of the Circuit Court of Grant County entered in the context of an abuse and neglect proceeding, holding the county sheriff in contempt for failing to serve an order removing children from a home. Finding no act on the part of the sheriff that was in disobedience of a court order, or official misbehavior, or a violation of W. Va. Code 61-5-26 in any manner, nor did the order at issue in this case contain any direction to the sheriff regarding service of process.

GLORIA BANKS, ET AL., v. PAUL WHITE CHEVROLET, INC., No. 32725 (Per Curiam)(Albright, J., concurring)(April 12, 2006). Reversing an order of the Circuit Court of Kanawha County that granted summary judgment to defendant below in a consumer protection action where an individual with a contractual relationship with a car dealership on two occasions appeared at the plaintiff's workplace, prior to the statutory 10-day right to cure period, to obtain a late payment and a $300 "fee". Holding that material questions of fact exist over whether was acting as a "repo man" or was engaged in debt collection activites. Remanding for further proceedings.

STATE v. GARY INSCORE, No. 32855 (STARCHER, J.)(June 26, 2006). Affirming an order of the Circuit Court of Mercer County that revoked probation and imposed the original sentence, where the revocation hearing took place after the defendant's original probation term had expired, because the defendant had been incarcerated in Virginia on other charges. Holding that neither the Interstate Agreement on Detainers nor the three-term rule contained in W. Va. Code 62-3-21 have any application to probation revocation proceedings. Setting forth guidelines for the exercise of reasonable diligence in such circumstances, including issuance of bench warrants and bringing the defendant before the West Virginia court for a probation revocation hearing within a reasonable time following conclusion of sentence in another state.

STATE v. JAMES ALLEN MECHLING, No. 32873 (STARCHER, J.)(Maynard, J., concurring in part and dissenting in part)(Benjamin, J., concurring)(June 30, 2006). Reversing a misdemeanor conviction for domestic battery. The conviction was obtained following a bench trial at which the victim did not testify, but the officer who responded to the scene testified to statements the victim had made to him. In light of recent United States Supreme Court decisions holding that the Sixth Amendment right of confrontation is violated when "testimonial" statements are admitted as evidence where there has been no opportunity for cross examination, reversing the conviction, and clarifying West Virginia law to follow new precedent.

STATE v. MATTHEW BOLEN, No. 32887 (Per Curiam)(Maynard, J., dissenting)(June 16, 2006). Reversing a conviction obtained in the Circuit Court of Cabell County for two counts of first degree sexual assault. Holding that the circuit court committed plain error in allowing the State to offer evidence of the victim's religious beliefs in order to bolster the victim's credibility. Remanded for retrial.

STATE v. DAMIEN RICKETTS, No. 32896 (Per Curiam)(June 8, 2006). Reversing a conviction for misdemeanor battery. Holding that admission of testimony regarding a prior conviction for felony delivery of a controlled substance was error, where the circuit court had ruled pre-trial that the evidence was inadmissible, no character issue was raised by the defendant and the state inquired anyway, whereupon the defendant's objection was overruled and the jury was later instructed to disregard.

STATE v. EARL RAY McCOY, No. 32860 (DAVIS, C.J.)(May 24, 2006). Reversing a conviction for first degree murder, without mercy, obtained following a jury trial in the Circuit Court of Lincoln County. Holding that the circuit court erred in preventing the defendant from asserting the defense of self-defense and the defense of insanity, solely on the basis that self-defense was inconsistent with the insanity defense. Further holding, in syllabus point 3, that: "The admissibility of corroborative evidence is largely within the trial court's discretion. However, a trial court abuses that discretion when it excludes the testimony of witnesses who would corroborate relevant facts, the veracity of which has been challenged by the prosecutor, when those facts have been relied upon by the defendant's expert in rendering an opinion pertaining to the defendant's defense." Remanding for a new trial.

STATE EX REL. SHEPHARD v. HOLLAND, et al., No. 32903 (Per Curiam). Denying a writ of prohibition sought to prevent further proceedings in a felony prosecution for non-payment of child support. Rejecting the defendant's contention that the indictment was insufficient, and further denying relief in light of the Court's resolution of the related civil appeal, HAYHURST v. SHEPARD, No. 32902 (STARCHER, J.)(June 16, 2006), which brought finality to the amounts owed.

STATE EX REL. JAMES WILLIAM GORDON, v. MCBRIDE, WARDEN, MOCC, No. 32768 (Per Curiam)(April 11, 2006). Affirming a decision of the Circuit Court of Wood County to deny habeas corpus relief, albeit on different grounds than articulated by the circuit court. Holding that the possibility of good time discharge prior to a parole eligibility date does not violate principles of due process and equal protection.

PETHEL V. McBRIDE, No. 32784 (BENJAMIN, J.)(Starcher, J., and Albright, J., dissenting)(Maynard, J., concurring)(June 8, 2006). Reversing an order of the Circuit Court of Ohio County that granted habeas corpus relief and set aside multiple convictions because of a violation of the Interstate Agreement on Detainers (IAD). Holding that the IAD is not a jurisdictional statute, and an IAD violation does not deprive a trial court of jurisdiction over criminal charges, nor is an IAD violation cognizable in post-conviction habeas corpus proceedings. Moreover, a guilty plea waives all rights under the IAD. Further addressing the guidelines for dismissal due to IAD violations and other matters.

STATE EX REL. PAMELA JEAN GAMES-NEELY v. HON. DAVID H. SANDERS, JUDGE OF THE CIRCUIT COURT OF BERKELEY COUNTY, AND JASON ERIC VANMETRE, No. 32875 (DAVIS, C. J.)(Starcher, J., dissenting)(Maynard, J., concurring)(February 17, 2006). Issuing a moulded writ of prohibition, and holding that a prosecuting attorney has discretion to prevent extradition before a defendant has been tried and discharged or convicted and punished in this state. Affirming the 90-day aggregate limit on fugitive warrant.

STATE v. CHRISTOPHER FRYE, No. 32786 (Albright, J.)(February 17, 2006). Affirming an order of the Circuit Court of Logan County that imposed a one to ten year sentence following a conviction for grand larceny. Holding that the record is not properly developed to permit review of allegations of ineffective assistance of counsel during voir dire and at trial. Clarifying that the allegation of ineffective assistance is not procedurally barred for purposes of future habeas corpus proceedings where, as here, there is no final adjudication on the merits of the issue.

KANAWHA COUNTY BOARD OF EDUCATION V. JOHNNY SLOAN, No. 32783 (Per Curiam)(Benjamin, J., concurring in part, dissenting in part)(February 17, 2006). Granting mixed relief in an appeal from an administrative disciplinary proceeding, wherein the circuit court affirmed grievance board findings that the employee had engaged in three acts of sexual harassment and immorality, and wherein the circuit court reinstated the employee with back pay and benefits, with a three-day suspension. Affirming the circuit court's conclusion that outright dismissal was too harsh a penalty, but nonetheless reversing the penalty imposed by the circuit court, and imposing a six-month unpaid suspension.

JOHNSON v. KILMER, No. 31871 (Per Curiam)(June 15, 2006). Affirming an order of the Circuit Court of Raleigh County that granted summary judgment to the employer in a wrongful discharge action alleging age discrimination. Holding that the circuit court correctly determined that there was insufficient evidence of age-based harassment and stating that: "Ms. Johnson's evidence established office pettiness, not age-based harassment."

KANAWHA COUNTY BOARD OF EDUCATION V. JOHNNY SLOAN, No. 32783 (Per Curiam)(Benjamin, J., concurring in part, dissenting in part)(February 17, 2006). Granting mixed relief in an appeal from an administrative disciplinary proceeding, wherein the circuit court affirmed grievance board findings that the employee had engaged in three acts of sexual harassment and immorality, and wherein the circuit court reinstated the employee with back pay and benefits, with a three-day suspension. Affirming the circuit court's conclusion that outright dismissal was too harsh a penalty, but nonetheless reversing the penalty imposed by the circuit court, and imposing a six-month unpaid suspension.

CECIL PRITT, ET AL. v. WV DIVISION OF CORRECTIONS, AND HUTTONSVILLE CORRECTIONAL CENTER, No. 32851 (Per Curiam)(April 11, 2006). Reversing an order of the Circuit Court of Randolph County that had reversed a Level IV grievance finding of no discrimination in the context of a dispute over a 5 percent pay increase for correctional officers. Holding that the circuit court erred in concluding that a prima facie case had been established, and further erred in finding that the agency's reliance on prior decision was pretextual, because it is unnecessary to reach that question in the absence of a prima facie case. Remanding for further factual development by the grievance board regarding the remaining 78 correctional officers involved in the grievance.

MAYFLOWER VEHICLE SYSTEMS, INC. v. VINCENT E. CHEEKS, AND THE WEST VIRGINIA HUMAN RIGHTS COMMISSION, No. 32864 (Per Curiam)(March 31, 2006). Granting mixed relief from an order of the Circuit Court of Kanawha County that affirmed a decision by the Human Rights Commission that an employer engaged in unlawful race-based discrimination against two employees. Affirming the Commission's determination, as affirmed by the circuit court, that the employer engaged in unlawful discrimination. Reversing the circuit court's award of back pay damages for one of the employees, and remanding for reconsideration of the date that those damages began to accrue.

BLETHEN, et al. v. WEST VIRGINIA DEPT. REVENUE, et al., No. 32962 (Per Curiam)(Davis, C.J., disqualified)(Kirkpatrick, Judge, by temporary assignment)(June 29, 2006). Affirming an order of the Circuit Court of Kanawha County that in turn affirmed an order of the grievance board. Holding that the circuit court correctly determined that three of the grievants lacked standing because they were no longer employees when the grievances were filed, and that the equal pay for equal work claims of twenty of the twenty-nine grievants were barred by the doctrine of res judicata.

WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD v. CARTER, et al., No. 32849 (BENJAMIN, J.)(June 14, 2006). Reversing an order of the Circuit Court of Wood County that allowed lump-sum payments for accrued vacation leave to be included in the final average salary used to calculate retirement benefits. Holding that the term "final average salary" as used in the applicable statute, plainly limits the calculation of retirement benefits to an annual salary and does not permit the inclusion of payments for unused, accrued vacation days.

MAYHORN v. WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, No. 32850 (MAYNARD, J.)(June 9, 2006). Reversing an order of the Circuit Court of Kanawha County that affirmed an administrative decision to deny a former school cook's application for disability retirement benefits. Holding that the administrative tribunal failed to follow an applicable regulation that required medical evidence to rebut the presumption of incapacity for service that arises when a member of the retirement system has been awarded disability benefits by the Social Security Administration.

HAYHURST v. SHEPARD, No. 32902 (STARCHER, J.)(June 16, 2006). Affirming an order of the Circuit Court of Ritchie County that affirmed a family court order. Holding that the family court properly refused to retroactively modify and eliminate a substantial portion of the parent's unpaid child support obligation, and also properly refused to give the parent credit against that unpaid obligation for health insurance premiums that covered his children. Specifically holding, in syllabus point 2: "The authority of a family court to modify a spousal support or child support award is prospective only and, absent a showing of fraud or other judicially cognizable circumstance in procuring the original award, a family court is without authority to modify or cancel accrued alimony or child support installments."

MARY R. v. BILLY D., No. 32901 (Per Curiam)(June 15, 2006). Reversing an order of the Circuit Court of Randolph County that adopted a modified parenting plan allowing visitation between a daughter and her mother, where the mother and stepfather were admitted nudists and an improper touching between daughter and stepfather had been alleged. Holding that visitation with the mother should be supervised, and that the stepfather should have no visitation whatsoever.

DONAHOE v. DONAHOE, No. 32763 (Per Curiam)(Davis, C.J., disqualified)(Silver, J., by temporary assignment)(May 12, 2006). Granting mixed relief from an order of the Circuit Court of Kanawha County. Affirming the finding of contempt with regard to appellant, but reversing a requirement that appellant make payments on a marital debt that has already been discharged.

IN RE: THE MARRIAGE OF KATHY M. SLOAN v. EDWARD W. SLOAN, No. 32852 (Per Curiam)(Starcher, J., dissenting)(March 16, 2006). Granting mixed relief from an order of the Circuit Court of Wood County. Affirming the family court's determination of spousal support, but finding an abuse of discretion with regard to division of marital assets, and remanding for additional evidence on issue of expenditures for remodeling of the marital home and reconsideration of the allocation of debt created thereby. Holding that W. Va. Code 48-11-103 does permit child support beyond the age of eighteen in certain circumstances, but remanding for proper consideration of the factors set forth in the statute.

ALICE GWEN NUTTER, v. MICHAEL WAYNE NUTTER, No. 32765 (Per Curiam)(March 30, 2006). Affirming an order of the Circuit Court of Jackson County that found the appellant to be entitled to a refund from the Bureau for Child Support Enforcement. Rejecting appellant's contention that the circuit court's prior finding of negligent handling of accounts by the Bureau for Child Support Enforcement should have resulted in a monetary damages award for personal stress and wage losses for the appellant and his current wife, in light of the statutory prohibition against an award of attorney fees, and in light of the fact that an appellate court is without authority to award damages where the lower court did not address the issue of damages.

COTTRILL v. COTTRILL, No. 32785 (Per Curiam)(May 12, 2006). Reversing an order of the Circuit Court of Harrison County. Holding that a pro se litigant's "skeletal argument" in family court in response to imposition of a child support arrearage should have been recognized as assertion of a valid statute of limitations defense to a action that is in fact time-barred.

IN THE MATTER OF: RENEWED INVESTIGATION OF THE STATE POLICE CRIME LABORATORY, SEROLOGY DIVISION, No. 32885 (MAYNARD, J.)(June 16, 2006). Adopting, as moulded, findings of a special judge appointed to oversee a renewed investigation of the Serology Division of the State Police Crime Laboratory. Adotping the report to the extent that it finds insufficient evidence of intentional misconduct by assistant serologists to warrant invalidation of serology evidence and systematic review of each case in which serology evidence was offered. However, in light of the frequent and recurring errors identified in the work of assistant serologists, setting forth a special habeas corpus procedure to be utilized by those prisoners against whom serologists, other than Fred Zain, offered evidence.

MATHENA, et al. v. HAINES, No. 32769 (STARCHER, J.)(Maynard, J., concurring in part and dissenting in part)(June 26, 2006). Granting mixed relief from orders of the Circuit Court of Randolph County relating to claims regarding prison conditions and medical care issues, including orders enjoining one inmate from filing any communication to the circuit court or the circuit clerk unless such communications were signed by an attorney licensed to practice law in West Virginia. Holding that Article III section 17 of the West Virginia Constitution gives prisoners a constitutional right to meaningful access to courts subject to reasonable limitations imposed to protect courts from abuse. Setting forth specific guidelines for circuit courts to follow if it becomes necessary to consider issuing an order limiting access to the courts. Affirming the circuit court's dismissal of the underlying allegations relating to prison conditions as having been previously and finally adjudicated.

IN RE: BOBBY LEE B., No. 32771 (Per Curiam)(February 21, 2006). Reversing an order of the Circuit Court of Randolph County that required DHHR to pay the sum of $1,000 for a four-hour sexual offender evaluation. Holding that W. Va. Code 49-7-33 is clear and unambiguous in requiring that such services shall be paid according to the Medicaid rate in juvenile delinquency cases.

PETRY v STUMP, COMM'R, No. 32886 (Per Curiam)(May 24, 2006). Reversing an order of the Circuit Court of Kanawha County that refused to grant extraordinary relief in a case where an original revocation hearing was held in February 1999, no decision was issued, the record of the hearing was lost by the agency through no fault of Mr. Petry, and the Commissioner sought to schedule a second hearing in March 2005. Holding that the time delay was presumptively prejudicial, and that the appellant's due process rights were violated. Revocation proceedings dismissed.

DAVID v. COMM'R, WEST VIRGINIA DIVISION OF MOTOR VEHICLES, No. 32859 (STARCHER, J.)(Benjamin, J., concurring)(May 12, 2006). Reversing an order of the Circuit Court of Kanawha County that refused a request for extraordinary relief in connection with a license revocation hearing . Holding in syllabus point 2 that: "Where the West Virginia Department of Motor Vehicles has improperly delayed a driver's license revocation proceeding held pursuant to W.Va. Code, 17C-5A-2 [2004] and thereby denied due process of law to a licensee, a party who has incurred substantial expenses as a result of the improper delay and denial may recover the party's expenses so incurred from the Department in order to place the party in the position in which he or she would have been absent the improper delay and denial by the Department."

STATE EX REL. CICCHIRILLO, V. HON. JACK ALSOP, JUDGE OF THE CIRCUIT COURT OF BRAXTON COUNTY; LONNIE D. ROSE AND RITA M. TONKIN, No. 32876 (MAYNARD, J.)(April 7, 2006). Granting a writ of prohibition to prevent the enforcement of portions of an order of the Circuit Court of Braxton County in two consolidated cases that challenged a DMV license revocation. The circuit court concluded, after hearing testimony on the issue by the hearing examiner and administrative counsel, that a DMV practice of having administrative counsel re-write decisions by a hearing examiner denied the petitioner's due process rights. The circuit court further ordered the DMV to promulgate rules and follow certain practices regarding the preparation and review of recommendations by hearing examiners. Holding that the circuit court exceeded its legitimate powers by imposing directives upon the agency, and that the circuit court was limited to affirming, remanding, reversing, vacating or modifying the agency's disposition of a contested cases, as required by West Virginia Code 29A-5-4.

CROUCH v. WEST VIRGINIA DIV. MOTOR VEHICLES, No. 32843 (DAVIS, C.J.)(May 24, 2006). Reversing an order of the Circuit Court of Raleigh County that reversed an administrative license revocation, where the arresting officer's testimony did not clearly establish jurisdiction. Holding that the Statement of Arresting Officer, as a required agency document, is admissible under W. Va. Code 29A-5-2(b), and is an acceptable means to demonstrate jurisdiction to make an arrest. Although the statement is admissible, its accuracy is still subject to challenge in a revocation hearing.

TAWNEY, et al. v. COLUMBIA NATURAL RESOURCES, LLC, et al., No. 32966 (MAYNARD, J.)(Davis. C.J., disqualified)(Benjamin, J., disqualified)(Kaufman, J., and Kirkpatrick, Judge, by temporary assignment)(June 16, 2006). Answering a certified question from the Circuit Court of Roane County relating to whether lease language permits a lessee to deduct post-production expenses from the lessors' royalty payments. Holding that the language in question was ambiguous, and setting forth guidelines for lease language in syllabus point 10: "Language in an oil and gas lease that is intended to allocate between the lessor and lessee the costs of marketing the product and transporting it to the point of sale must expressly provide that the lessor shall bear some part of the costs incurred between the wellhead and the point of sale, identify with particularity the specific deductions the lessee intends to take from the lessor's royalty (usually 1/8), and indicate the method of calculating the amount to be deducted from the royalty for such post-production costs." Further holding that the language at issues was not effective, in syllabus point 11: "Language in an oil and gas lease that provides that the lessor's 1/8 royalty (as in this case) is to be calculated 'at the well,' 'at the wellhead,' or similar language, or that the royalty is 'an amount equal to 1/8 of the price, net all costs beyond the wellhead,' or 'less all taxes, assessments, and adjustments' is ambiguous and, accordingly, is not effective to permit the lessee to deduct from the lessor's 1/8 royalty any portion of the costs incurred between the wellhead and the point of sale."

JACKIE L. SNIDER v. FOX, WARDEN, MOCC, No. 32767 (Per Curiam)(January 27, 2006). Affirming dismissal of habeas challenge to disciplinary decision. Holding that the title of an administrative rule not controlling where the contents of the rule are sufficient to provide notice of prohibited conduct. Applying "some evidence" standard and affirming, because sufficient evidence supports disciplinary determination.

THE HARDWOOD GROUP, DBA PLYWOOD AND PLASTICS OF ROANOKE, v. CLAIRE V. LAROCCO, No. 32781 (DAVIS, C. J.)(Albright, J., concurring)(February 17, 2006). Affirming trial court's denial of a motion to set aside default judgment. Clarifying that when addressing a motion to set aside default judgment, "good cause" requires not only considering the factors set forth in syllabus point 3 of PARSONS v. CONSOLIDATED GAS SUPPLY CORP., 163 W.V. 464, 256 S.E.2d 758 (Miller, J.)(1979), but also requires a showing that a ground set out in Rule 60(b) has been satisfied. In syllabus point 4, setting forth five factors to be considered in determining whether "good cause" has been established.

IN THE MATTER OF: CLARENCE W. "CHARLIE" McCOURT, JR., MAGISTRATE FOR UPSHUR COUNTY, No. 33068 (Per Curiam)(Starcher, J. and Albright, J., concurring in part and dissenting in part)(June 14, 2006). Affirming a previous decision to suspend a magistrate without pay pending the outcome of judicial disciplinary proceedings, in light of sufficient evidence to believe that Magistrate McCourt has engaged in a serious violation of the Code of Judicial Conduct.

LAWYER DISCIPLINARY BOARD v. THOMAS H. McCORKLE, No. 25321 (Per Curiam)(June 8, 2006). Adopting the recommended decision of the Hearing Panel Subcommittee, and annulling the license of a lawyer found to have violated the Rules of Professional Conduct in two separate instances, and in light of the aggravating factors of prior disciplinary actions.

LAWYER DISCIPLINARY BOARD v. DANIEL J. POST, No. 31734 (ALBRIGHT, J.)(May 25, 2006). In a reciprocal disciplinary proceeding, annulling the law license of an attorney who was disbarred in the State of Colorado. Setting forth guidelines for reciprocal disciplinary proceedings and the duties imposed on attorneys in this state to report any discipline imposed elsewhere, and holding that the Colorado procedures did not violate due process, and the remainder of the arguments amount to collateral attacks that were not asserted in the disciplinary actions.

LAWYER DISCIPLINARY BOARD v. LARRY E. LOSCH, No. 32554 (Per Curiam)(June 29, 2006). Modifying sanctions recommended by the Board for violations of Rules 8.4(c) and 8.4(d) of the Rules of Professional Conduct, and imposing public reprimand, additional legal education requirements, and payment of the costs of the proceedings.

LAWYER DISCIPLINARY BOARD v. EUGENE M. SIMMONS, No. 32761 (Per Curiam)(June 29, 2006). Modifying sanctions recommended by the Board for violations of Rules 1.3, 1.4(a) and 1.4(b) of the Rules of Professional Conduct, and imposing twenty-day suspension, additional legal education requirements, supervised practice for one year, restitution, and payment of the costs of the proceedings.

LAWYER DISCIPLINARY BOARD v. JOHN PATRICK BALL, No. 31794 (DAVIS, C.J.)(Starcher, J., disqualified)(Walker, Judge, by temporary assignment)(June 15, 2006). Imposing a harsher sanction than recommended by the Lawyer Disciplinary Board, and annulling the law license of the respondent, with other specific conditions, for several violations of the Rules of Professional Conduct in the context of preparing wills for clients. Clarifying, in syllabus point 3, that: "The Rules of Professional Conduct cannot be waived by a client, so as to permit a lawyer to do that which the Rules prohibit, unless the Rules themselves provide a specific exception allowing waiver. The Rules reflect the high standards by which all lawyers must abide regardless of the wishes of a client." In light of the clear violations of the Rules, holding that total restitution is appropriate, in addition to annulment of the respondent's license. Setting forth the method for enforcement of the restitution order in syllabus point 4: "When this Court, in a lawyer disciplinary proceeding, issues an order that requires an attorney to make restitution to his or her client, the order may be enforced in two ways: (1) by the Office of Disciplinary Counsel seeking a contempt order from this Court, or (2) through the prosecution of a separate lawsuit by the client or a duly authorized representative of the client."

HEARTLAND, L.L.C., et al. v. McINTOSH RACING STABLE, L.L.C., No. 32894 (ALBRIGHT, J.)(May 12, 2006). Reversing an order of the Circuit Court of Jefferson County that granted summary judgment to defendants in a dispute over the sale of a horse stable and actions taking at a "dry closing." Holding that factual disputes over what transpired at the dry closing preclude summary judgment. Further holding, in syllabus point 7, that: "A deed drawn and executed in anticipation of the creation of the grantee as a corporation, limited liability company, or other legal entity entitled to hold real property is not invalidated because the grantee entity had not been established as required by law at the time of such execution, if the entity is in fact created thereafter in compliance with the requirements of law and the executed deed is properly delivered to the entity, the grantee, after its creation."

MAPLEWOOD ESTATES HOMEOWNERS ASSOCIATION v. PUTNAM COUNTY PLANNING COMMISSION AND SHERMAN AND HELENE BENNETT, No. 32780 (Per Curiam)(March 31, 2006). Reversing an order of the Circuit Court of Putnam County and reinstating the Putnam County Planning Commission's decision to grant a variance allowing homeowners to subdivide their residential property. Holding that the circuit court improperly substituted its own judgment for that of the planning commission, and that the appellants had clearly satisfied the requirements for a subdivision variance under the applicable regulations.

T. WESTON, INC v. MINERAL COUNTY, WEST VIRGINIA, and COUNTY COMMISSION OF MINERAL COUNTY, et al., No. 32890 (STARCHER, J.)(Benjamin, J., dissenting)(June 29, 2006). Answering a certified question from the United States District Court for the Northern District of West Virginia. Holding that the county commission, in a county that has created a county planning commission, does not have authority to enact an ordinance limiting the locations of exotic entertainment, in light of W. Va. Code 7-1-3jj(b), which states that "[i]n the event a county has not created or designated a planning commission . . ., a county commission may . . . adopt an ordinance that limits the areas of the county in which a business may offer 'exotic entertainment' . . . ."

CHRISTINE MCCONAHA, et al. v. ETHEL ISABELLE RUST, et al., No. 32726 (ALBRIGHT, J.) (March 2, 2006). Affirming an order of the Circuit Court of Kanawha County that effected the partition of three parcels of real estate owned by the appellant's father at the time of his death. Holding that the appellant lacks standing to assert that the circuit court improperly recognized the bills of sale as effective means of transferring property interests and the court's determination that either the quitclaim deed or the alleged agreement on which it was based could serve to convey a distinct portion of land held in common, in light of the fact that the appellant did not demonstrate having been injured by these rulings. Rejecting other allegations, and finally holding that a settlement agreement was properly enforced and would not be disturbed on appeal.

COMMUNITY ANTENNA SERVICE v. PUBLIC SERVICE COMMISSION AND CHARTER COMMUNICATIONS VI, LLC, No. 31767 (BENJAMIN, J.)(June 30, 2006)(Note: This case was submitted on January 18, 2005.) Reversing orders of the Public Service Commission and remanding for further proceedings, in a dispute over special promotional price plans offered by Charter. Holding that the PSC erred in its application of the uniform rate requirement, and that Charter failed to demonstrate that these special pricing plans were universally applied or temporary in nature. After review of applicable federal law, holding that the PSC is permitted to review any of a cable operator's rates in order to prevent rate discrimination in a given franchise area. Further addressing notice requirements.

WETZEL COUNTY SOLID WASTE AUTHORITY v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, et al., No. 33036 (Per Curiam)(June 29, 2006). Granting a writ of mandamus to compel the Public Service Commission to enforce its order denying a certificate of need for a sewage sludge composting facility. Holding that the PSC is obliged to take action to force compliance under W. Va. Code 24-2-7(a), and ordering the PSC to issue a cease and desist order forthwith.

HELTON v. ELK RUN COAL CO., No. 32891 (STARCHER, J.)(Maynard, J., dissenting)(Albright, J., concurring)(Banjamin, J., concurring)(June 13, 2006). Reversing an order of the Circuit Court of Kanawha County that agreed with the taxpayer that its refund petition should have been included in a previous decision favorable to other taxpayers because of a procedural default by the Tax Commissioner. Holding that the taxpayer could not take advantage of the procedural default, and clarifying, in syllabus point 2, that: "He who seeks equity must do equity."

LOYAL ORDER OF MOOSE, MARTINSBURG LODGE No. 120 v. STATE TAX COMMISSIONER, No. 32842 (Per Curiam)(Starcher, J., dissenting)(May 18, 2006). Reversing an order of the Circuit Court of Berkeley County that upheld an administrative denial of a license renewal application to hold charitable bingo and raffles. Holding that the circuit court interpreted the applicable statute too narrowly, and that it was unreasonable to allow part of the proceeds not to be used for expenses, in light of W.Va. Code 47-21-15(a) and (b). Further holding that a prior penalty imposed upon the taxpayer was coerced, and should not have formed the basis for a subsequent denial of license renewal application.

HAWKINS, et al. v. UNITED STATES SPORTS ASSOCIATION, INC., et al., No. 32869 (Per Curiam)(June 15, 2006). Affirming an order of the Circuit Court of Marion County that granted summary judgment to defendants in a personal injury action involving a buried PVC pipe along the first base line at a softball field. Holding that the circuit court properly determined that no material factual dispute existed, in light of the fact that none of the appellees had knowledge of the buried PVC pipe.

PHILYAW v. EASTERN ASSOCIATED COAL CORP., No. 32754 (Per Curiam)(Davis, C.J., concurring)(Starcher, J., dissenting)(Albright, J., dissenting)(May 12, 2006). Affirming an order of the Circuit Court of Raleigh County that granted summary judgment to the defense in an action alleging intentional infliction of emotional distress. Holding that insufficient evidence was presented to sustain the cause of action where the plaintiff's subjective belief that he was compelled to manipulate dust samples was not based upon any communication or direction from the defendant, and where the plaintiff had alternatives, other than violating regulations, to control and report dust levels.

STATE EX REL. CITY OF MARTINSBURG, v. SANDERS, et al., No. 32868 (AKBRIGHT, J.)(Starcher, J., dissenting)(June 29, 2006). Granting a writ of prohibition sought by the City of Martinsburg to prevent enforcement of an order denying its motion to dismiss a negligence action brought by firefighters alleging exposure to diesel fumes and seeking medical monitoring damages. Holding that the employer immunity in W. Va. Code 23-2-6 protects political subdivisions from awards of medical monitoring damages based upon common law tort theories.

PORTER, et al. v. GRANT COUNTY BD. of EDUCATION, No. 32866 (MAYNARD, J.)(June 16, 2006). Answering certified questions from the Circuit Court of Grant County arising from a personal injury action asserted against the board of education by an individual who slipped and fell on a sidewalk located on school property during an evening basketball game, where school had been cancelled that day throughout the entire county due to the effects of a major snow storm. Holding that the plaintiffs misapprehend the plain language of the exception to statutory immunity in W. Va. Code 29-12A-5(a)(6), which would apply only if the school's negligent act had affirmatively caused the snow or ice conditions on which Mrs. Porter fell.

GAUZE v. REED, et al., No. 32787 (STARCHER, J.)(Benjamin, J. concurring)(July 5, 2006). Affirming an order of the Circuit Court of Mingo County in a dispute over insurance coverage. Holding, in syllabus point 3, that: "When an insurance company (a) issues a primary liability insurance policy; and (b) has contracted for and received a premium for a risk as though it were a primary insurer; but (c) the insurance company has become a secondary insurer by operation of an 'other insurance' clause in the policy and the existence of another primary insurance carrier, then if that other insurance carrier is declared insolvent, the insurance company is responsible for coverage of the loss as though it were the sole primary liability insurer."

JENKINS v. STATE FARM MUTUAL AUTOMOBILE INS. CO., No. 32895 (Per Curiam)(Starcher, J., dissenting)(May 18, 2006). Affirming an order of the Circuit Court of Wayne County that granted summary judgment in favor of insurer. Holding that the circuit court was correct in determining that where multiple policies are in effect, plaintiff's estate was not entitled to recover under the policy with the highest underinsured limits, where exclusionary language clearly limited recovery to a lower limit policy attached to the vehicle driven when the accident occurred.

BENDER, et al. v. GLENDENNING, et al., Nos. 32862 and 32863 (Per Curiam)(Maynard, J., dissenting)(Benjamin, J., dissenting)(May 12, 2006). Reversing an order of the Circuit Court of Webster County that granted summary judgment in favor of the defendant insurer, that the policy of insurance issued to the Board of Education did not provide coverage for the acts of sexual misconduct which the various appellants allege against the Board's former employee. Finding that the employee teacher was a named insured, and that the conduct was covered under the policy language relating to a "wrongful act", and coverage was not otherwise excluded by the policy. Remanding for further proceedings.

MORRIS v. CROWN EQUIPMENT CORP., et al., No. 32751 (STARCHER, J.)(Maynard, J., dissenting)(Albright, J., concurring)(Benjamin, J., concurring)(June 29, 2006). Reversing an order of the Circuit Court of Kanawha County that granted motions to dismiss. Holding that W. Va. Code 56-1-1(c) violates the Privileges and Immunities Clause of the United States Constitution, Art. IV, Sec. 2, because application of the statute would impose a categorical bar upon nonresidents of West Virginia in their access to West Virginia courts in cases where an otherwise similarly situated resident of West Virginia would not experience such a bar. Further declining to upset the long-settled doctrine of the venue-giving defendant such cases, and specifically holding in syllabus point 3: "W.Va. Code, 56-1-1(c) [2003] does not require a plaintiff to separately establish venue for each defendant."

RICHMOND v. LEVIN, No. 32877 (Per Curiam)(Maynard, J., and Benjamin, J., dissenting)(June 8, 2006)(Petition for Rehearing refused September 7, 2006). Reversing an order of the Circuit Court of Raleigh County that upheld a non-unanimous jury verdict in favor of the defendant, based upon a provision of the Medical Professional Liability Act that was declared unconstitutional in LOUK v. CORMIER, 218 W.Va. 81, 622 S.E.2d 788 (2005). Applying the BRADLEY retroactivity factors, and determining that the holding in LOUK should have been reasonably foreshadowed, that the decision was procedural and was not a departure from prior decisions, and retroactive application will have a narrow impact only upon cases pending in circuit court or on appeal at the time LOUK was decided. Further rejecting an ex post facto due process challenge.

MERRILL, et al. v. WEST VIRGINIA DEPT. OF HEALTH AND HUMAN RESOURCES, No. 32856 (Per Curiam)(Albright, J. and Madden, Judge, dissenting)(Justice Starcher and Justice Benjamin disqualified)(Judge madden and Judge Murensky, by temporary assignment)(May 12, 2006). Affirming an order of the Circuit Court of Kanahwa County that granted summary judgment in favor of the defendant below, in connection with an action arising from the services, or lack thereof, provided to the plaintiffs during their infancy in relation to sexual abuse they suffered at the hands of their father. Holding that the circuit court did not err in determining that the discovery rule did not operate to toll the applicable statute of limitations, in light of the absence of any supporting affidavits to corroborate statements made by the plaintiffs regarding the time they discovered the causal connection between their injury and DHHR's actions, and the absence of any specific facts in the record to support their claims of delay in discovery.

DANA SCOTT ROY AND JENA J. ROY v. KENNETH D[base ']AMATO, D.O., No. 32853 (Per Curiam)(March 31, 2006). Reversing an order of the Circuit Court of Randolph County that dismissed a medical malpractice action for failure to comply with the pre-suit requirements of the MPLA. Applying the Court's ruling in HINCHMAN v. GILLETTE, 217 W. Va. 378, 618 S.E.2d 387 (STARCHER, J.)(2005), and holding that the dismissal was premature in light of the fact that the plaintiff had no notice about defects in the notice of claim, and the defendant had not had an opportunity to request mediation, as was contemplated by the pre-suit procedures.

LINDA FARLEY AND CLINTON FARLEY v. JEFFREY SHOOK, D.P.M., et al., No. 32770 (Per Curiam)(March 16, 2006). Granting mixed relief from orders of the Circuit Court of Cabell County that granted summary judgment to an emergency room doctor, a hospital and two podiatrists in a medical malpractice action. Affirming the grants of summary judgment to the emergency room doctor and the hospital, but reversing the grants of summary judgment in favor of the podiatrists. Holding that the circuit court improperly denied the plaintiff additional time within which to secure an appropriate expert.

BIAS v. EASTERN ASSOC. COAL CORP., No. 32778 (BENJAMIN, J.)(Davis, C.J., and Maynard, J., concurring)(Starcher, J., dissenting)(Albright, J., concurring in part and dissenting in part)(June 8, 2006)(Petition for rehearing refused September 7, 2006). Answering a certified question from the Circuit Court of Boone County regarding whether an employee who sustains a mental injury without a physical manifestation, and is precluded by statute form obtaining workers' compensation benefits, can nevertheless maintain a common-law cause of action against the employer. Holding, in syllabus point 3, that the common-law action is not available: "An employee who is precluded by W.Va. Code § 23-4-1f (1993) from receiving workers' compensation benefits for a mental injury without physical manifestation cannot, because of the immunity afforded employers by W.Va. Code 23-2-6 (1991), maintain a common law negligence action against his employer for such injury."

DAVEY v. ESTATE OF HAGGERTY, et al., No. 32858 (Per Curiam)(Benjamin, J.., concurring)(May 12, 2006). Reversing an order of the Circuit Court of Mineral County that granted summary judgment in favor of defendants below. Holding that the discovery rule applies to toll the statutory and common-law limitations period in an action challenging the authenticity of a will admitted to probate five years after alleged grantor died intestate.

***IMPORTANT NOTE*** In the case set forth below, the Court on May 11th granted a petition for rehearing, which means that the original opinion becomes a nullity, and the case will be re-briefed and re-argued. The opinion summary and link to the opinion are included for reference purposes only. The case is set for re-argument on October 25, 2006.
LINDA J. HAINES, M.D., v. PAMELA K. KIMBLE, EXECUTRIX OF THE ESTATE OF RALPH W. HAINES, No. 32844 (Per Curiam)(Starcher, J., and Benjamin, J., dissenting)(March 17, 2006). Reversing an order of the Circuit Court of Hampshire County (Henning, Judge, by special assignment), that affirmed the county commission's refusal to remove the executrix of an estate. REHEARING GRANTED MAY 11th, 2006 (3-2)(DAVIS, C.J. AND MAYNARD, J., would refuse).

STATE EX REL. JOHNSON v. REED, et al., No. 33002 (Per Curiam)(June 14, 2006). Granting a moulded writ of prohibition to prevent the enforcement of an order removing an executor. Holding that the order contained inadequate findings, conclusions and analysis regarding a potential conflict.

STATE EX REL. CRIST, et al., v. JANE CLINE, INSURANCE COMM'R, et al., Nos. 33056, 33057 and 33058 (DAVIS, C.J.)(Maynard, J., concurring)(June 12, 2006). Granting a writ of mandamus to compel the Insurance Commissioner to comply with statute, where death benefits are warded to a surviving widow or widower pursuant to W. Va. Code 23-4-10, such benefits may not be terminated prior to death or remarriage of the widow or widower.