Issue 90 of the Opinion Summary service is posted, covering the final 24 opinions issued for cases argued in the September 2006 term. The opinions in the following three cases argued this term will be held over until next term, when the opinions will issue in due course. The cases are listed below, along with a link to the day the case was argued, where briefs are available.

• STATE v. MULLENS, No. 33073 (constitutionality of warrantless audio and video recordings obtained by undercover police informant while in defendant's home)
• HAINES v. KIMBLE, No. 32844 (appeal from refusal to remove executor of an estate, argued on rehearing)
• JACKSON v. PUTNMAN COUNTY BD. of ED., et al., No. 33038 (plaintiff appeals summary judgment for defendant where plaintiff asserts that the school board was negligent in failing to provide transportation for her son to an off-campus school event; her son was killed in an accident while riding in a private vehicle on the way back from the event)

IN RE: RANDY H., APRIL G., BRITTANY T. AND MEGAN H., No. 33086 (STARCHER, J.)(November 30, 2006). Guardians ad litem for four children appealed an order of the Circuit Court of Hardy County that dismissed an abuse and neglect case. Reversing, and holding that the circuit court had authority to compel the Department to further investigate additional allegations of abuse and had a duty to make findings of fact and conclusions of law regarding those allegations. Holding, in syllabus point 5: "To facilitate the prompt, fair and thorough resolution of abuse and neglect actions, if, in the course of a child abuse and/or neglect proceeding, a circuit court discerns from the evidence or allegations presented that reasonable cause exists to believe that additional abuse or neglect has occurred or is imminent which is not encompassed by the allegations contained in the Department of Health and Human Resource's petition, then pursuant to Rule 19 of the Rules of Procedure for Child Abuse and Neglect Proceedings [1997] the circuit court has the inherent authority to compel the Department to amend its petition to encompass the evidence or allegations."

IN RE: CHRISTINA W., SISSY W., AND LISA W., No. 33133 (DAVIS, C.J.)(November 29, 2006). WVDHHR appealed an order of the Circuit Court of Mercer County denying the Department's motion to remove guardian ad litem. Affirming, and addressing situation where guardian is asked to keep abuse confidential. Holding that the role of a guardian is similar to the role of an attorney in an attorney-client relationship, and therefore, as a general rule, the Rules of Professional Conduct apply. However, also holding that the duty to protect client confidences is not absolute, and where there is a high risk of probable harm, the guardian has a duty to disclose to the circuit court.

STATE v. RONNIE ALLEN RUSH, No. 33035 (Per Curiam)(Maynard, J., dissenting)(Benjamin, J., concurring)(November 30, 2006). Defendant appealed the transfer of his case to adult status by the Circuit Court of Calhoun County and his ensuing convictions on two counts of manslaughter and one count each of first degree robbery, burglary, and conspiracy to commit burglary. Granting mixed relief, and affirming the circuit court's transfer decision. Reversing the circuit court's decision with regard to the admission of certain statements obtained. Holding that the totality of the circumstances, in light of the appellant's juvenile status and mental impairment, demonstrate that the significant period of delay in taking the appellant before a judicial officer was for the improper purpose of eliciting a confession. Remanding for new trial.

STATE OF W. VA. v. ROGER ERIC JONES, No. 33072 (Per Curiam)(November 29, 2006). Petitioner was convicted for First Degree Murder and sentenced by the Circuit Court of Roane County to life in prison with no possibility of parole. Affirming the conviction and sentence, and rejecting argument that because questioning pertained to more than one crime but only one set of Miranda warnings were given, the post-arrest statements were improperly admitted. Further holding that no evidence of coercion was presented.

STATE v. MICHAEL LEE KENDALL, No. 32689 (Per Curiam)(Starcher, J., dissenting)(November 29, 2006). Petitioner appealed his convictions upon jury trial in the Circuit Court of Gilmer County for burglary and for three counts of brandishing a firearm. Reversing, and holding that the jury, rather than the circuit court, should have decided the question of whether exigent circumstances existed for the defendant, a city police officer, to enter the home. Further holding that, despite the presence of multiple witnesses, one act of brandishing should produce a conviction for only one act of brandishing. Remanding for new trial.

STATE v. ERNEST J. JOHNSON, No. 32978 (Per Curiam)(Starcher, J., concurring)(November 29, 2006). Ernest J. Johnson appealed an order of the Circuit Court of Cabell County entered upon conviction for second degree robbery and sentence as an habitual offender to life with mercy. Vacating the robbery conviction, in light of the fact that the defendant was wrongly charged with first degree robbery, where no firearm or other weapon was presented. Holding that the lack of objection to the indictment did not act as a waiver, because the indictment was so defective as not to charge an offense.

STATE v. KEVIN RAY MIDDLETON, No. 33048 (DAVIS, C.J.)(Starcher, J., dissenting)(Albright, J., dissenting)(Maynard, J., concurring)(November 29, 2006). Kevin Ray Middleton appealed his conviction and sentence imposed by the Circuit Court of Kanawha County for one count of sexual abuse by a parent, guardian or custodian and one count of first degree sexual abuse. Affirming, and rejecting arguments that statements made to authorities were improperly admitted. Outlining the factors to be considered by the trial court in determining whether a custodial interrogation exists for purposes of requiring MIRANDA warnings. Also setting forth two important holdings with regard to whether the defendant must be informed of the presence of counsel while being interrogated in a noncustodial setting. See, syllabus point 3: "A police officer may continue to question a suspect in a noncustodial setting, even though the suspect has made a request for counsel during the interrogation, so long as the officer's continued questioning does not render statements made by the suspect involuntary." Syllabus point 4: "If, during the course of noncustodial interrogation of a suspect, the police are made aware that legal counsel has been retained for the suspect, the police are under no obligation to inform the suspect that counsel has been retained." Finally, clarifying the manner in which presentence credits should be applied, "against the aggregated maximum term of the consecutive sentences." Syllabus point 6.

STATE OF W. VA. v. MICHAEL DAVID DOONAN, No. 33052 (DAVIS, C.J.)(Maynard, J., dissenting)(December 1, 2006). Defendant, who was convicted of First Offense DUI by Magistrate Court, appealed an order of the Circuit Court of Wood County finding that the errors he cited were harmless, denying his appeal from conviction and sentencing him to serve 48 hours in jail. Reversing, and concurring with the State's confession of error as to defendant's assertion that the magistrate court erred by precluding his expert from testifying on the basis that the expert was not disclosed to the State. Holding, in syllabus point 5 that: "Until an appropriate rule is adopted in the Rules of Criminal Procedure for Magistrate Courts, the provisions of Rule 16 of the West Virginia Rules of Criminal Procedure shall govern the procedures and requirements for discovery in criminal cases which are to be heard on their merits in magistrate courts." Although the defendant made a request for discovery from the State, the State did not comply, and therefore under the reciprocal discovery principles in Rule 16, the defendant was under no obligation to disclose his expert. Therefore, the magistrate court erred in excluding the expert's testimony. Providing further guidance for remand regarding admission of an illegible printout. Remanding for new trial.

STATE v. BRUSIE "DON" LANHAM, No. 33092 (Per Curiam)(November 30, 2006). Petitioner appealed an order of the Circuit Court of Ritchie County that denied the defendant's motion for a new trial following a jury conviction of felony-murder. Petitioner was sentenced to life in prison without the possibility of parole. Affirming, and rejecting the petitioner's argument that the State improperly destroyed exculpatory evidence when it returned the mobile home where the shootings took place to the family before defense counsel could examine the physical evidence. Holding that the circuit court did not err, in light of the fact that the conviction was for felony murder, the weight of eyewitness testimony, the 911 tape, and other evidence presented at trial, the absence of assertions that any critical piece of evidence was improperly preserved, and the efforts made by the State to collect all necessary evidentiary samples before the trailer was returned.

STATE v. TONY FRANKLIN DAUGHERTY, SR., No. 33075 (Per Curiam)(Starcher, J., concurring in part and dissenting in part)(November 29, 2006). Petitioner appealed an order of the Circuit Court of Summers County denying a Motion for a New Trial after conviction, following a jury trial, on four counts of sexual abuse by a parent, guardian or custodian. Affirming, and holding that statements by a juror about fear of possible retaliation related to the mental process of the jury and therefore could not form the basis for a new trial under Rule of Evidence 606(b).

SER MARK DICKERSON v. CITY OF LOGAN, et al., No. 33174 (Per Curiam)(November 29, 2006). Petitioner sought to compel reinstatement as police officer and a pre-termination hearing. Granting moulded relief, and holding that due process was violated by the City's failure to provide reasons in writing and a pre-termination hearing. Reinstated with back pay.

FREDERICO HATCHER v. THOMAS McBRIDE, WARDEN, No. 32977 (STARCHER, J.)(November 21, 2006). Frederico Hatcher appealed an order of the Circuit Court of Cabell County that denied his petition for post-conviction habeas corpus. He was previously convicted of felony murder without a recommendation of mercy. Holding that the assertion of evidentiary error with regard to admission of character testimony by a circuit judge was not cognizable in a habeas corpus proceeding. Holding further that testimony by judges should be discouraged, and setting forth guidelines to be followed in the future, including an appropriate balancing test, cautionary instructions, and other limitations.

MARTHA F. RYAN v. CHARLES E. RYAN, No. 33004 (BENJAMIN, J.)(Davis, C.J., disqualified)(Wilson, Judge, by temporary assignment)(December 1, 2006). Petitioner wife appealed an order of the Circuit Court of Kanawha County refusing her petition for appeal and affirming the family court's final order denying her petition for modification seeking to extend her monthly rehabilitative alimony payments. Affirming the denial of extended alimony, and holding, in syllabus point 3 that: "A contract may not be reformed or rescinded based upon a mutual mistake of fact if the mistake relates to a mistaken belief, judgment, or expectation as to future, rather than past or present, facts, occurrences or events."

PATRICIA E. FITZGERALD v. EARL L. FITZGERALD, No. 33043 (DAVIS, C.J.)(Starcher, J., dissenting)(Albright, J., dissenting)(Benjamin, J., concurring)(November 30, 2006). Answering certified questions from the Circuit Court of Putnam County relating to whether worker's compensation permanent total disability benefits constitute marital or separate property for purposes of equitable distribution in a divorce proceeding. Holding, in syllabus point 3: "A workers' compensation permanent total disability award is considered to be wage replacement for the wages the injured employee would have earned but for his/her work-related injury and is not considered to be an award for the injured employee's pain and suffering resulting from such work-related injury." Further holding, in syllabus point 5: "In a divorce proceeding, that portion of a lump sum workers' compensation permanent total disability award that represents wages the injured spouse would have earned, but for his/her work-related injury, while the parties were married and cohabiting constitutes marital property subject to equitable distribution pursuant to W.[integral]Va. Code 48-7-101, et seq."

KATHERINE B.T. v. SALLY G. JACKSON, FAMILY COURT JUDGE, et al., No. 33005 (STARCHER, J.)(Maynard, J., dissenting)(November 30, 2006). Petitioner appealed an order of the Circuit Court of Jefferson County that denied her petition for a writ of prohibition seeking to prohibit the effect of orders entered by the family court in a domestic violence proceeding brought against petitioner by her minor son. Affirming the lower court's decision, and holding that a minor may file a petition for a domestic violence protective order under W. Va. Code 48-27-305. Further holding that a guardian ad litem must be appointed in such circumstances. Finally, setting forth reporting duties for judicial officers who have reasonable cause to suspect that a child is neglected or abused in syllabus point 8: "When any circuit court judge, family court judge, or magistrate has reasonable cause to suspect that a child is neglected or abused, the circuit court judge, family court judge, or magistrate shall immediately report the suspected neglect or abuse to the state child protective services agency pursuant to W.Va. Code, 49-6A-2 (2006) and, if applicable, Rule 48 of the Rules of Practice and Procedure for Family Court."

STATE EX REL. ROBERT L. MCCABE v. EVELYN SEIFERT, WARDEN, No. 32976 (Per Curiam)(Albright, J., dissenting)(Starcher, J., disqualified)(Mazzone, Judge, by temporary assignment)(November 29, 2006). Petitioner, who is now released on parole, appealed an order of the Circuit Court of Monongalia County denying his petition for a writ of habeas corpus. Holding that the appeal must be dismissed as moot, where limited issues remain, where the petitioner is on parole and does not make a substantive challenge to the conditions of his parole, with leave to file a motion in circuit court for correction of sentence.

SER R. E. HAMRICK, JR., M.D. v. HON. JAMES C. STUCKY, et al., No. 33195 (MAYNARD, J.)(Starcher, J., dissenting)(Benjamin, J., concurring in part and dissenting in part)(November 30, 2006). Petitioner sought to prevent further involvement of a discovery commissioner, and to prevent enforcement of the commissioner's recommendations. Granting the writ of prohibition, and holding, in syllabus point 5: "Whenever a discovery commissioner is appointed by a circuit court, and there is a timely objection to that appointee, the trial court has a duty to hold an evidentiary hearing to determine the legitimacy of the objection." In order to avoid even the appearance of impropriety, directing that a new discovery commissioner be appointed on remand.

LAWYER DISCIPLINARY BOARD v. LEONARD S. COLEMAN, No. 32861 (Per Curiam)(November 30, 2006). Concurring with the Hearing Panel Subcommittee's recommendation that the license to practice law be annulled for violations of the Rules of Professional Conduct involving misappropriation of over $170,000 in client fees paid to law firm. Rejecting mitigating circumstances asserted by the respondent and agreeing with the aggravating circumstances asserted by the Board. Further ordering full restitution to former law firm, with interest at a rate of ten percent per year, and payment of the costs of the disciplinary proceeding.

LAWYER DISCIPLINARY BOARD v. DESIREE LYNETTE ALBERS, No. 31279 (Per Curiam)(November 29, 2006). Accepting the Hearing Panel Subcommittee's recommendation, and granting a petition for reinstatement to the practice of law, with certain conditions.

JOHN SMITH, ET AL. V. IRMA SMITH, No. 33063 (BENJAMIN, J.)(December 1, 2006). Plaintiffs John and Katherine Smith appealed an order of the Circuit Court of Summers County entered after a bench trial on their suit to reform a deed. Granting mixed relief, and holding that if an unambiguous deed fails to express the obvious intentions of the parties, a court may utilize parole evidence to ascertain the parties' intent. Further clarifying the doctrine of mutual mistake and reformation of deeds, in syllabus point 4: "A mutual mistake is one which is common to all parties, wherein each labors under the same misconception respecting a material fact or provision within the agreement[;]" and in syllabus point 5: "To justify the reformation of a clear and unambiguous deed for mistake, the mistake must be one of fact, not of law; the mistake must be mutual and common to both parties to the deed; the unambiguous deed must fail to express the obvious intention of the parties; and the mutual mistake must be proved by strong, clear and convincing evidence." Granting mixed relief, and affirming the circuit court's order with regard to ingress/egress and occasional use of a parking lot. Reversing that portion of the circuit court's order that prevented the plaintiffs from continuing to use the parking lot for an annual three-day weekend "apple butter festival."

STATE ex rel. DEPT. OF TRANSPORTATION, DOH, et al. v. COOKMAN, et al., No. 33095 (BENJAMIN, J.)(Davis, C.J., dissenting)(Starcher, J., concurring in part and dissenting in part)(December 1, 2006). Dept of Highways sought a writ of prohibition to prevent disclosure of certain appraisal reports and other materials utilized by non-testifying experts in a condemnation matter. Declining to address questions presented by interplay with federal law, and granting moulded relief to require the circuit court upon remand to make the requisite "exceptional circumstances" findings required for disclosure of material under Rule Civ. P. 26(b)(4)(B).

BOARD OF EDUCATION OF THE COUNTY OF KANAWHA v. WV BOARD OF EDUCATION, et al., No. 33081 (MAYNARD, J.)(Starcher, J., dissenting)(Albright, J., dissenting)(December 4, 2006). The Kanawha County School Board appealed an order of the Circuit Court of Kanawha County that granted summary judgment in favor of the West Virginia Board of Education and the State Superintendent. The Kanawha Board unsuccessfully sought to have its local share, for purposes of computation of the state school funding formula, reduced by the amount of the county's regular tax levy which is statutorily required to go the county's public library system (just over $2.2 million per year). Reversing, and holding that the circuit court incorrectly applied the rational basis test to evaluate an equal protection challenge involving the fundamental right to a thorough and efficient education. Applying the strict scrutiny test to find that the lack of uniformity in the educational funding statute violates equal protection by improperly increasing the calculation of local share by funds that are required by law to be diverted to public libraries in certain counties. Staying the effect of the Court's decision until the beginning of the next fiscal year, July 1, 2007, to permit a possible resolution by the Legislature.

JERRILL DAVIS, ET AL. v. EAGLE COAL AND DOCK COMPANY, ET AL., No. 33054 (MAYNARD, J.)(Davis, C.J. disqualified)(Johnson, Judge, sitting by temporary assignment)(December 4, 2006). Answering certified questions arising from the Circuit Court of Mingo County, in the context of a dispute over whether state law tort claims could proceed against the manufacturer of roof bolting systems used in underground coal mines. Holding that state law tort claims are not preempted by federal law in this context.

STATE ex rel. VALLEY RADIOLOGY, INC., DBA VALLEY RADIOLOGIST v. HON. MARTIN J. GAUGHAN, JUDGE, No. 33173 (ALBRIGHT, J.)(November 29, 2006). Defendants below sought a writ of prohibition to prevent enforcement of an order of the Circuit Court of Ohio County granting a new trial solely on the issue of damages, where the jury found liability but made no award of damages for lost wages or pain and suffering. Denying the writ, and holding that the plaintiffs did not waive their right to seek relief from the verdict on the grounds of inadequacy by refusing the trial court's offer to have the jury deliberate further on the issue of damages. Further holding that an objection to the verdict form is distinct from an objection to adequacy of damages, and thereby clarifying the general waiver rule of COMBS V. HAHN, 205 W.Va. 102, 516 S.E.2d 506 (1999).

STATE ex rel. THOMAS TAYLOR, et al. v. HON. DAVID W. NIBERT, JUDGE, et al., No. 33175 (MAYNARD, J.)(Davis, C.J., disqualified)(Stone, Judge, by temporary assignment)(November 30, 2006). Petitioners -- who were plaintiffs in actions pending in Marshall and Jefferson Counties -- sought to prohibit enforcement of an order of the Circuit Court of Roane County transferring their case under Rule 42(b), without prior notice. The Roane County court had certified a mandatory punitive damages class action arising out of 1993 and 1999 mass mailings by Nationwide Mutual Insurance Company, on the basis of a "limited punishment" theory. Granting the writ of prohibition, and holding that transfer was not appropriate because the cases are not logically related such that it can be said that they arose out of the same transaction or occurrence. Further addressing notice and hearing requirements in syllabus point 4: "When a motion is made to have an action transferred pursuant to Rule 42(b) of the West Virginia Rules of Civil Procedure, the movant must give notice to all parties in the case(s) to be transferred. The parties in the case(s) to be transferred must be given the opportunity to object prior to the transfer and if requested, the transferring court shall hold a hearing to determine whether transfer is proper under Rule 42(b)."