IN RE: SKYLEAN H., EARL K. MERSADIES K., AND CODY K., No. 33135 (Per Curiam)(November 17, 2006). The guardian ad litem appealed an order of the Circuit Court of Roane County that dismissed the abuse and neglect petition and ordered the children to be returned to the care of the mother. Reversing, in light of additional information that arose during argument, as well as another abuse and neglect matter involving the same family, and remanding for further proceedings.

STATE OF W. VA. v. JEFFREY L. FINLEY, No. 32961 (ALBRIGHT, J.)(Davis, C.J. and Maynard, J., dissenting)(Benjamin, J., concurring)(November 16, 2006). Jeffrey L. Finley appealed his conviction following a jury trial in the Circuit Court of Cabell County for first degree murder without a recommendation of mercy and two counts of second degree sexual assault. Granting mixed relief and affirming the conviction, but reversing the judgment at the penalty phase. Holding that it was a denial of due process to compel the defendant to appear in prison clothing at the penalty phase of a bifurcated murder trial, and setting forth guidelines for circuit courts to follow in the future.

SER JOHN MCLAURIN v. THOMAS MCBRIDE, WARDEN, No. 32983 (Per Curiam)(November 15, 2006). John McLaurin appealed an order of the Circuit Court of Kanawha County that denied of a petition for writ of habeas corpus. Affirming, and rejecting various assignments of error.

PATTY KALANY, ET AL. v. HERMAN CAMPBELL, DBA IRENE'S BAR, No. 33078 (ALBRIGHT, J.)(Starcher, J., dissenting)(November 16, 2006). Defendant Herman Campbell, individually and d/b/a Irene's Bar, appealed from orders of the Circuit Court of Ohio County that entered judgment upon jury verdict finding that he engaged in common law retaliatory discharge of plaintiff Patty Kalany and that awarded plaintiff's attorney's fees and costs under the Human Rights Act, where the defendant had been granted judgment as a matter of law on plaintiff's Human Rights Act claims and the plaintiff prevailed on a common law claim. Affirming the trial court's decision with regard to the retaliatory discharge claim, but reversing the award of attorney's fees and costs. Holding, in syllabus point 2, that: "An employer who does not come within the protections of the West Virginia Human Rights Act, West Virginia Code 5-11-1 to -21 (Repl. Vol. 2006), based on the minimal number of employees he hires, cannot be deemed a statutory 'person' for purposes of relying on the Act's authority to make an award of fees and costs at the discretion of the trial court."

MICHAEL GIANNINI v. FIREMEN'S CIVIL SERVICE COMM. OF CITY OF HUNTINGTON, et al., No. 33074 (ALBRIGHT, J.)(November 16, 2006). The City of Huntington appealed an order of the Circuit Court of Cabell County that reversed the Huntington Firemen's Civil Service Commission. The commission had upheld the termination from employment of Huntington Firefighter Michael Giannini, but the circuit court found that there was not just cause for termination. Reversing, and reinstating the commission's decision, and holding that possession of a substance that field tested positive for cocaine was just cause for termination.

IN THE MATTER OF: THE ADOPTION OF JAMISON NICHOLAS C. BY CHARLES & TWILA M., No 33079 (MAYNARD, J.)(November 13, 2006). The WV Department of Health and Human Resources appealed from an order of the Circuit Court of Wayne County that granted a child post-adoption assistance in the form of a Medicaid card. Holding that the Federal Adoption Assistance and Child Welfare Act of 1980 imposes a duty upon the DHHR to notify prospective adoptive parents and legal guardians of the availability of assistance for the care of a potentially special needs child in instances where the Department has responsibility for the case of the child or is otherwise aware of the child. Accordingly, in light of the circumstances, the circuit court was correct.

MARY ELLEN GAINER v. JOHN DAVID GAINER, No. 33065 (Per Curiam)(November 14, 2006). John Gainer appealed an order of the Circuit Court of Putnam County in a divorce proceeding. Granting mixed relief, and holding that the family court properly applied the present division method of deferred distribution, and that the division of annuities was also proper. However, reversing the family court's treatment of service credits earned due to military service prior to marriage. Holding that those service credits should have been treated as separate, rather than marital property. Remanding for further proceedings.

JAMES ROBERT EVANS, JR. v. SHARON ROSE EVANS, No. 33045 (STARCHER, J.)(November 14, 2006). Petitioner James Evans, Jr. appealed an order of the Circuit Court of Logan County that reversed a family court order and reinstated his spousal support obligation. Reversing, and holding that the family court was correct to terminate spousal support in light of the remarriage of the appellee, although the final divorce order was silent on that issue. Clarifying that if neither a separation agreement nor final order addresses remarriage, then a court, upon motion of a party, must terminate spousal support obligation upon remarriage. Further clarifying, in syllabus point 5, that: "To give full meaning to W.Va. Code, 48-6-202 [2001] and W.Va. Code, 48-6-203 [2001], when a family court is asked to ratify a separation agreement that includes provisions pertaining to spousal support, or whenever spousal support is awarded in the absence of such an agreement, the family court is required to state whether the spousal support obligation continues or ceases upon the death of the payor or payee, and whether the spousal support obligation continues or ceases upon the remarriage of the payee."

LOWELL B. COGAR v. LEE LAFFERTY, No. 33007 (MAYNARD, J.)(November 14, 2006). Purchaser of property in a tax sale appealed an order of the Circuit Court of Raleigh County that set aside his deed. The circuit court ruled that the deed must be set aside because a partner in the partnership which had owned the property was not provided notice to redeem. Reversing, and holding that partners in a general partnership are not co-owners of partnership property entitling them to separate notice, and that it is only necessary to serve notice of a right to redeem upon the partnership itself.

LARRY D. ELMORE, ADM. V. TRIAD HOSPITALS, INC., et al., No. 33006 (Per Curiam)(Davis, C.J., concurring)(Benjamin, J., concurring in part and dissenting in part)(November 16, 2006). Plaintiff Larry D. Elmore appealed an order of the Circuit Court of Greenbrier County that dismissed without prejudice defendant John M. Johnson, D.O. from a medical malpractice case. The circuit court found that plaintiff failed to comply with the MPLA's pre-suit notice of claim requirements. Reversing, in light of HINCHMAN v. GILLETTE, 217 W.Va. 378, 618 S.E.2d 387 (2005).

TAX COMMISSIONER OF THE STATE OF W. VA. v. MBNA AMERICA BANK, N.A., No. 33049 (MAYNARD, J.)(Benjamin, J., dissenting)(Davis, C.J., concurring)(November 21, 2006). Appellant, MBNA America Bank (hereinafter "Bank") is a Delaware financial organization whose principal business is issuing and servicing Visa and MasterCard credit cards. The Bank solicits, issues and services credit cards to people with West Virginia addresses. The taxes at issue were computed by taxing the portion of income attributable to gross receipts received by the Bank from this West Virginia source pursuant to the West Virginia Business Franchise Tax and Corporate Net Income Tax under W.Va. Code 11-23-5(a) and 11-24-7(b). This case originated as an action by the Bank to recover a refund of the taxes paid for the years 1998 and 1999. Initially, the Chief Administrative Law Judge of the Office of Tax Appeals determined that the Commerce Clause of the United States Constitution and the applicable state statute prohibit the Commissioner's imposition of the tax at issue. The State Tax Commissioner appealed the decision of the Chief Administrative Law Judge to the circuit court. The Circuit Court of Kanawha County reversed the final decision of the Office of Tax Appeals and denied the Bank's cross-petition for appeal holding that the Commerce Clause permitted the Commissioner's imposition of the tax. The Bank now appeals that decision, asking this Court to reverse the circuit court, arguing that the taxes as imposed violate the Commerce Clause of the United States Constitution. Affirming the circuit court's decision, and holding in syllabus point 2, that: " The United States Supreme Court's determination in Quill Corp. v. North Dakota, 504 U.S. 298, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992), that an entity's physical presence in a state is required to meet the 'substantial nexus' prong of Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), applies only to state sales and use taxes and not to state business franchise and corporation net income taxes." Applying a "significant economic presence test" to determine that a substantial nexus exists for Commerce Clause purposes.

COPIER WORD PROCESSING SUPPLY, INC. v. WESBANCO BANK, et al., No. 33046 (DAVIS, C.J.)(Starcher, J., dissenting)(Albright, J., concurring)(November 15, 2006). The Circuit Court of Wood County certified a two-part question concerning the applicability of the continuing tort theory to the statute of limitations for conversion of negotiable instruments, W.Va. Code 46-3-118(g). "In a case governed by the three year limitations period provided for in West Virginia Code 46-3-118(g): (a) Does the continuing tort theory apply to the alleged conversion of multiple, separate negotiable instruments made payable to the plaintiff's business by an employee of plaintiff to her personal checking account at defendant bank over a period of several years, such that the cause of action accrues at, and the statute of limitations does not begin to run until, the date of the alleged conversion of the last negotiable instrument, permitting damage claims for instruments allegedly converted more than three years prior to the filing of the complaint, or (b) Does the cause of action accrue and the limitations period run from the date of the negotiation of each separate instrument permitting damage claims only for such instruments allegedly converted within such three year period prior to the filing of the complaint? Circuit court's answer: (a) No; (b) Yes." Agreeing with the circuit court's answers to the questions, and concluding that the continuing tort theory may not be applied to the conversion of multiple, separate negotiable instruments in such a manner as to extend the statute of limitations.

DIANA MAE SAVILLA, ADMX. v. SPEEDWAY SUPERAMERICA, LLC, ETC., et al., No. 33053 (STARCHER, J.)(Davis, C.J., dissenting)(Maynard, J., dissenting)(Albright, J., concurring)(Benjamin, J., disqualified)(Evans, Judge, by temporary assignment)(November 16, 2006). Plaintiff appealed an order of the Circuit Court of Kanawha County that granted defendant Speedway SuperAmerica, LLC, d/b/a Rich Oil's motion to dismiss in this wrongful death and deliberate intent action. Reversing, and holding, in syllabus point 2, that: "A personal representative who is not one of the statutorily-named beneficiaries of a deliberate intention cause of action authorized by W.Va. Code, 23-4-2(c) [2005] has standing to assert a deliberate intention claim against a decedent's employer on behalf of a person who has such a cause of action in a wrongful death suit filed pursuant to W.Va. Code, 55-7-6 [1992]." Further holding, in syllabus point 3: "Pursuant to W.Va. Code, 23-4-2(c) [2005] and W.Va. Code, 55-7-6 [1992], the persons who can potentially recover 'deliberate intention' damages from a decedent's employer are the persons specified in W.Va. Code, 23-4-2(c) [2005]: the employee's widow, widower, child, or dependent of the employee."

MARK MIKESINOVICH, EXECUTOR. v. REYNOLDS MEMORIAL HOSPITAL, INC., No. 32968 (Per Curiam)(November 16, 2006). Plaintiff below appealed an order of the Circuit Court of Marshall County denying his motion for a new trial following an adverse jury verdict in a medical negligence action against the Hospital. Appellant's mother was a patient at the Hospital when she fell and broke her hip while being assisted by a nurse. Appellant argued the trial court erred in refusing to strike certain jurors. Reversing, and holding that the trial court's refusal to strike a juror who was employed by one of the parties in the litigation was error. Declining to address arguments related to jury questionnaires.