ATTORNEYS, CONTRACTS :: Fee arrangement not unreasonable

SCHRADER BYRD & COMPANION, P.L.L.C. v. MARKS, et al., No. 33184 (STARCHER, J.)(Maynard, J., and Benjamin, J., dissenting)(Albright, J., concurring)(April 5, 2007). Affirming a judgment of the Circuit Court of Ohio County that concluded that a law firm's fee arrangement with its clients was fair, reasonable and consistent with the original retainer agreement. Holding, in syllabus point 2, that: "An attorney fee payment arrangement whereby the attorney receives a percentage of funds as they are periodically received by the attorney's client is not, as such, either suspect or impermissible. Factors to be considered in determining an attorney's entitlement to receive fees in such a fashion include: (1) the terms of the fee agreement between the attorney and the client; and (2) whether, when viewed in the context of the entire representation of the client by the attorney, the fees are fair and reasonable."

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CONSTITUTIONAL :: Legislature may define lawful hunting

HARTLEY HILL HUNT CLUB, et al., v. COUNTY COMMISSION OF RITCHIE COUNTY, et al., No. 33176 (STARCHER, J.)(Benjamin, J., disqualified)(Cookman, Judge, by temporary assignment)(May 11, 2007). Affirming an order of the Circuit Court of Ritchie County that upheld the constitutionality of W.Va. Code 20-2-5(28), which prohibits hunting on Sunday in certain circumstances. Holding, in syllabus point 5, that: "Article III, Section 22 of the West Virginia Constitution protects a person's right to keep and bear arms for lawful hunting. This clause preserves the State's right, through the exercise of its police power, to enact reasonable laws defining what forms of hunting are lawful."

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CONTRACTS, HOSPITALS, ANTITRUST, STATUTORY CONSTRUCTION :: Restraint of trade in contracts with providers

KESSEL, et al. v. MONONGALIA GENERAL HOSPITAL CO., et al., No. 33096 (BENJAMIN, J.)(Starcher, J., dissenting)(June 6, 2007). Affirming an order of the Circuit Court of Monongalia County that granted partial summary judgment to defendants with regard to all claims under state antitrust law, arising out of plaintiffs' allegation that certain contracts for operative anesthesiology services at the hospital constituted a restraint of trade. Setting forth guidelines for determining when courts should comply with legislative direction to construe a particular statutory scheme in harmony with federal statutes and federal judicial interpretations. Holding that the circuit court correctly applied federal law. Rejecting appellant's contention that W. Va. C.S.R. 142-15-3 elevates tying arrangements to a per se violation of West Virginia antitrust law.

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CRIMINAL, ATTORNEYS :: Conflict of interest and ineffective assistance of counsel

STATE EX REL. CARROLL EUGENE HUMPHRIES v. THOMAS MCBRIDE, WARDEN, No. 33103 (Per Curiam)(April 19, 2007). Petitioner appealed an order of the Circuit Court of Greenbrier County that denied his petition for a writ of habeas corpus. Petitioner was convicted by a jury on July 30, 1999, of one count of felony offense of accessory before the fact to murder of the first degree, and one count of the felony offense of conspiracy to commit murder. Reversing and remanding for a new trial, in light of the conflict of interest of defense counsel and ineffective assistance of counsel with regard to several issues throughout trial, as well as a Sixth Amendment violation at trial.

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CRIMINAL, EVIDENCE :: Late disclosure of rebuttal witness merited mistrial

STATE v. JULIAN R. SMITH, No. 33171 (Per Curiam)(Maynard, J., dissenting)(Albright, J., concurring)(June 13, 2007). Reversing conviction of the offense of aggravated robbery following a jury trial in the Circuit Court of Kanawha County. Holding that a witness, disclosed after the defendant testified, who recanted an undisclosed pretrial statement that supported the defendant's defense of alibi, was prejudicial. Holding that "manifest necessity for a mistrial is demonstrated in the record in the following respects: (1) the State failed to provide notice of the rebuttal witness whose testimony was elicited to contradict Smith's alibi defense; (2) the State advised Smith that it was unaware of any evidence favorable to Smith and, further, failed to disclose to Smith the pretrial statement of the rebuttal witness which initially had supported Smith's alibi defense; and (3) although stating to the Circuit Court that no formal plea agreement had been made with the rebuttal witness, the State failed to disclose that the witness had been offered the possibility of entering a plea to unaggravated robbery in exchange for his truthful testimony at trial."

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CRIMINAL, EVIDENCE :: Failure to provide pre-trial notice of 404(b) material, dismissed charges as 404(b) material

STATE v. JEREMIAH DAVID MONGOLD, No. 33222 (DAVIS, C.J.)(Starcher, J., concurring in part and dissenting in part)(June 6, 2007). Affirming a conviction for death of a child by parent, guardian or custodian by child abuse, obtained following a jury trial in the Circuit Court of Hampshire County. Holding that the trial court did not err in admitting related incident evidence that was not disclosed prior to trial, in light of the fact that the evidence was used to rebut defendant's character testimony. Setting forth a good cause standard for failure to disclose in syllabus point 3: "Rule 404(b) of the West Virginia Rules of Evidence requires the prosecution in a criminal case to disclose evidence of other crimes, wrongs or acts prior to trial if such disclosure has been requested by the accused; however, upon reasonable notice such evidence may be disclosed for the first time during trial upon a showing of good cause for failure to provide the requested pretrial notice." Further holding in syllabus point 4 that dismissal or acquittal of a charge does not prohibit its use as 404(b) material.

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CRIMINAL, EVIDENCE :: Trial court improperly questioned witnesses

STATE v. GERALD THOMPSON, JR., No. 33097 (STARCHER, J.)(May 15, 2007). Defendant appealed a Clay County jury conviction for "attempting to operate or operating a clandestine drug lab." Reversing the conviction in light of the prejudice created by the repeated questioning of witnesses by the trial judge. Setting forth standards for evaluating whether a judge's partiality became a factor in the determination of the jury so that the defendant did not receive a fair trial.

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CRIMINAL, EVIDENCE :: Imputed knowledge of Brady material

STATE v. DENVER A. YOUNGBLOOD, JR., No. 31765 (DAVIS, C.J.)(Maynard, J., dissenting)(Starcher, J., concurring)(Benjamin, J., dissenting)(May 10, 2007). On remand from the Supreme Court of the United States, reversing a jury conviction obtained in the Circuit Court of Morgan County. Holding that a prosecutor's duty to disclose Brady material includes disclosure of evidence that is known only to a police investigator and not to the prosecutor. Further clarifying the three components of a constitutional due process violation under Brady, and holding that the failure to disclose constituted a due process violation. Remanded for new trial.

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CRIMINAL, MOTOR VEHICLES :: Driving privilege suspension applies to operating an ATV

STATE ex rel. SERGENT v. NIBERT, et al., No. 33327 (ALBRIGHT, J.)(June 6, 2007). Granting a writ of prohibition sought by the prosecuting attorney of Roane County to prevent dismissal of an indictment for driving with a revoked license. Clarifying that administrative license suspension or revocation involves loss of both the license and privilege to operate a motor vehicle on public highways, and holding, in syllabus point 3 that "An individual who operates an all-terrain vehicle on a public highway of this state may be prosecuted for committing the offense of driving while suspended or revoked under the provisions of West Virginia Code 17B-4-3 (2004)."

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CRIMINAL, PROCEDURE :: Moot because sentence discharged

STATE v. BRYAN ANTHONY MERRITT,, No. 33105 (Per Curiam)(April 19, 2007). Merritt appealed an order of the Circuit Court of Wood County that denied his petition for modification of sentence. Dismissed as moot in light of discharge of the 45-day sentence, and the absence of sufficient collateral consequences or great public interest that would justify relief. The underlying issue [^] whether the magistrate and circuit courts erred in not granting Merritt a stay [^] is of unique concern to Merritt.

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CRIMINAL, PROCEDURE :: Compelled testimony when witness is to invoke Fifth Amendment

STATE v. ANTHONY RAY WHITT, No. 33039 (ALBRIGHT, J.)(Maynard, J., dissenting)(Benjamin, J., concurring)(April 6, 2007). Anthony Ray Whitt appealed his McDowell County conviction for second degree murder. Holding that the circuit court erred by refusing to permit a co-defendant to be called to the stand who indicated her intention, through counsel, to invoke the Fifth Amendment if called to testify. Setting forth guidelines for establishing a violation of the right to compulsory process afforded criminal defendants in article III, section 14 of the West Virginia Constitution, and further setting forth guidelines regarding the exception to the general rule against not allowing a witness to take the stand solely to invoke the Fifth Amendment privilege against self-incrimination, providing that the circuit court has discretion to permit such compulsory process in certain circumstances. Remanded for a new trial.

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CRIMINAL :: Sentence properly corrected

STATE ex rel. CORNELL F. DAYE v. McBRIDE, Warden, Nos. 33100 & 33101 (STARCHER, J.)(June 27, 2007). Appellant sought review of an order of the Circuit Court of Raleigh County in a habeas corpus proceeding, arguing that the circuit court improperly corrected a sentence in order to permit enhancement. Holding, in syllabus point 5, that: "When any person is convicted of an offense under the Uniform Controlled Substances Act (W.Va Code, Chapter 60A) and is subject to confinement in the state correctional facility therefor and it is further determined, as provided in W.Va. Code, 61-11-19 (1943), that such person has been before convicted in the United States of a crime or crimes, including crimes under the Uniform Controlled Substances Act (W.Va. Code, Chapter 60A), punishable by confinement in a penitentiary, the court shall sentence the person to confinement in the state correctional facility pursuant to the provisions of W.Va. Code, 61-11-18 (2000), notwithstanding the second or subsequent offense provisions of W.Va. Code, 60A-4-408 (1971)." Holding that the circuit court properly corrected the illegal sentence originally imposed, and rejecting the appellant's argument that the enhancement provisions of the Uniform Controlled Substances Act should take precedence over the general habitual criminal offender statue. Remanded for appointment of counsel and further proceedings regarding remaining assignments of error.

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CRIMINAL :: Probation revocation affirmed

STATE v. JAMES K. HOSBY, No. 33247 (Per Curiam)(June 7, 2007). Affirming an order of the Circuit Court of Jefferson County that revoked probation and ordered appellant to serve the remainder of a one-year jail sentence received after a guilty plea to the misdemeanor offense of failure to pay child support. Holding that the circuit court properly determined that the appellant failed to follow the conditions of probation.

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CRIMINAL :: Actual or constructive possession of drug-making materials or equipment

STATE v. MICHAEL CUMMINGS, No. 33223 (BENJAMIN, J.)(Starcher, J., concurring)(Maynard, J., dissenting)(Albright, J., concurring)(June 6, 2007). Reversing felony convictions for attempting to operate a clandestine drug lab and conspiracy to attempt to operate a clandestine drug lab obtained following a jury trial in the Circuit Court of Roane County. Rejecting the State's argument that both intent and possession could be inferred from the circumstances, which involved evidence that the appellant was operating a vehicle, which was not owned by him, and which contained cold medicine and matches in the rear passenger area. Holding, in syllabus point 6, that: "In order to sustain a conviction for violation of W. Va. Code 60A-4- 411 (2003), by assembling any chemicals or equipment for the purpose of manufacturing methamphetamine, the State must prove beyond a reasonable doubt that the defendant had actual or constructive possession over the chemicals and/or equipment. In order to establish constructive possession where the defendant is present in a vehicle wherein such materials are found, the State must prove beyond a reasonable doubt that the defendant had knowledge of the presence of the chemicals and/or equipment to be used for the purposes of manufacturing methamphetamine and that such items were subject to the defendant's dominion and control."

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CRIMINAL :: Jury instruction on attempt properly refused

STATE v. ERIC DELBERT JETT, No. 33198 (Per Curiam)(May 17, 2007). Defendant appealed a Kanawha County Circuit Court conviction and sentence for operating or attempting to operate a clandestine drug laboratory under West Virginia Code 60A-4-411. Affirming the conviction, and holding that the circuit court properly refused to give defendant's requested jury instruction defining the term "attempt."

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CRIMINAL :: Child neglect resulting in death conviction affirmed

STATE v. ADONIS RAY THOMPSON, No. 33206 (Per Curiam)(May 11, 2007). Defendant appealed Circuit Court of Kanawha County jury conviction for child neglect causing death, after his two-year old died from hyperthermia after being left in an infant car seat in defendant's car over four hours on a day when outside temperatures reached in excess of eighty degrees. Holding that it was not plain error for the trial court not to instruct the jury on the defense of unconsciousness or automatism, and further holding that the evidence was sufficient to support the conviction.

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CRIMINAL :: Voluntary manslaughter conviction affirmed

STATE v. VALERIE WHITTAKER, No. 33037 (Per Curiam)(Maynard, J., concurring)(Starcher, J., dissenting)(Albright, J., dissenting)(April 5, 2007). Defendant appealed her Mercer County jury conviction for voluntary manslaughter. Holding that the circuit court properly refused to grant a judgment of acquittal based upon self-defense; that the circuit court properly limited the testimony of certain defense witnesses; and that the circuit court properly handled other evidentiary matters, including admitting a statement made by the defendant.

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CRIMINAL :: Incorrect jury instruction on element of intent

STATE v. WADE C. DAVIS, No. 33191 (Per Curiam)(Maynard, J., dissenting)(Benjamin, J., dissenting)(April 5, 2007). Defendant appealed Circuit Court of Kanawha County jury conviction and sentence for second degree murder. Reversing and remanding for new trial, and holding that the circuit court erred in failing to properly instruct the jury that "intent" is an element of second degree murder, after the jury specifically inquired as to the difference between second degree murder and involuntary manslaughter.

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EMPLOYMENT :: Wrongful discharge claims preempted

LONTZ, et al. v. THARP, et al., No. 33243 (Per Curiam)(June 13, 2007). Affirming an order of the Circuit Court of Ohio County that dismissed a complaint alleging wrongful discharge. Holding that the circuit court properly determined that the action is preempted by the National Labor Relations Act. Appellants were supervisors at a Holiday Inn who engaged in union organizing activities. Holding that the National Labor Relations Board provides the best forum for resolving the issues, including the first-impression issue of whether the NLRA applies to activities by supervisors.

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EMPLOYMENT, EQUITY, RETIREMENT BENEFITS :: Equitable estoppel applied to government agency

HUDKINS v. STATE of WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, No. 33245 (Per Curiam)(June 13, 2007). Affirming an order of the Circuit Court of Kanawha County that reversed the retirement board's administrative decision to deny the appellee's right to convert unused sick leave to retirement service credit. Although such credit was later precluded by rule, holding that the doctrine of equitable estoppel should be applied to permit the appellee to claim the service credit, in light of the fact that the appellee relied on representations of a retirement board employee to her detriment, all limited to the specific facts of the case.

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EMPLOYMENT, PROCEDURE :: Res judicata not established in grievance appeal

STEPHEN ANTOLINI, ET AL. v. WV DIVISION OF NATURAL RESOURCES, No. 33182 (Per Curiam)(April 10, 2007). Three state employees appealed an order of the Circuit Court of Kanawha County that dismissed their grievance appeal upon determining that their claims were barred by res judicata. Reversing the circuit court's decision in light of the fact that in the companion case, the Grant County Circuit Court lacked jurisdiction to hear the appeal of the Level IV grievance, and in the absence of a final adjudication on the merits by a court having jurisdiction, the first element of res judicata is not satisfied. Remanded for further proceedings.

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FAMILY :: Vacating post-majority college expense obligations without agreement

CAROLE E. DAMRON SHORTT v. FREDERICK CECIL DAMRON, No. 33185 (STARCHER, J.)(May 11, 2007). Former husband appealed an order of the Circuit Court of Kanawha County that affirmed a family court decision requiring him to pay expenses for the post high school education of his child. Clarifying the relationship between two versions of a statute relating to such orders in syllabus point 2: "W.Va. Code, 48-2-15d [1993] was amended in 1994 (using language now codified at W.Va. Code, 48-11-103(c) [2002]) to authorize courts to vacate the provisions of certain divorce orders entered under the authority of W.Va. Code, 48-2-15d [1993] that required a parent to pay for a child's post-majority college expenses without the agreement of the parent." Holding that the order in question was not subject to vacation, and therefore declining to reach the issue of whether the separation agreement was enforceable.

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FAMILY, EVIDENCE, PROCEDURE :: Admission of hearsay testimony, harmless error

IN RE: MARRIAGE OF MISTY D.G. v. RODNEY L.F., No. 33226 (Per Curiam)(June 13, 2007). Reversing an order of the Circuit Court of Raleigh County that reversed a family court decision. Holding that the circuit court erred in concluding that the family court improperly considered inadmissible hearsay and expert witness evidence in rendering its decision to modify child custody. Holding that the family court properly admitted certain testimony by a counselor under the medical treatment exception to the hearsay rule, and that other improperly admitted testimony was harmless and did not affect the ultimate outcome. Remanded for reinstatement of family court's decision.

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INSURANCE, DUE PROCESS :: Non-renewal of physician insurance by state actor is subject to due process

ZALESKI v. WEST VIRGINIA PHYSICIAN'S MUTUAL INSURANCE CO., No. 33242 (ALBRIGHT, J.)(June 27, 2007). Granting mixed relief from a final order of the Circuit Court of Ohio County in a suit involving reinstatement of medical malpractice insurance coverage. Holding that the physician's mutual insurance company formed pursuant to W. Va. Code 33-20F-1 et seq. is a state actor for due process purposes, and that physicians are entitled to due process protection in seeking review of any non-renewal decision made by the company. (Syl. Pts. 3 and 6.) Setting forth process required in syllabus point 8: "Being a state actor for due process purposes, West Virginia Physicians' Mutual Insurance Company is required to make available to parties affected by its non- renewal decisions a review process that minimally includes: notice of the non-renewal which conforms with the requirements of West Virginia Code 33-20C-4(a) and which includes the reasons for non-renewal; hearing before an unbiased hearing examiner; reasonable time in which to prepare to rebut the charges; opportunity to have retained counsel at any hearings on the charges; opportunity to present relevant evidence which includes calling and cross-examining witnesses; and preservation of an adequate record of the review proceedings." Directing that the matter be remanded to the physician's mutual for a proper non-renewal hearing.

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PROCEDURE :: Timing of counterclaim and third-party complaint

WALKER v. OPTION ONE MORTGAGE CORP., et al., No. 33225 (Per Curiam)(Davis, C.J., dissenting)(Starcher, J., dissenting)(June 7, 2007). Reversing an order of the Circuit Court of Kanawha County that denied defendants below leave to file a counterclaim and third party complaint. Holding that the circuit court erred in denying leave to file a compulsory counterclaim, in the absence of evidence that the appellants were dilatory. Further holding that permitting the filing of a third-party complaint would not cause prejudice, and would promote judicial economy.

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PROCEDURE, FOIA :: Prevailing pro se litigant entitled to costs, but not attorney fees

JOHN SMITH v. DR. DJ BRADLEY, PRESIDENT, FAIRMONT STATE UNIVERSITY, No. 33156 (Per Curiam)(April 13, 2007). Smith appealed an order of the Circuit Court of Marion County that dismissed his FOIA case against Fairmont State University after it granted him substantial relief: copies of other professors' performance evaluations with only certain personal information redacted. The circuit court also denied Smith's request for attorney's fees and costs because he was a pro se litigant, among other reasons. Granting mixed relief and affirming the circuit court's decision to provide evaluations in redacted form, and affirming denial of attorney's fees. Reversing the circuit court's determination that Smith was not entitled to court costs, and remanding for further consideration of an appropriate award of costs under W.Va. Code 29B-1-7.

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PROCEDURE, MOTOR VEHICLES :: Dismissed as untimely filed, Rule 60(b) motion doesn't toll

MOTEN v. STUMP, COMM'R MOTOR VEHICLES, No. 33220 (Per Curiam)(Albright, J., concurring)(June 6, 2007). Appellant sought reversal of an order of the Circuit Court of Raleigh County that affirmed suspension of his driving privileges. Dismissing the appeal as improvidently granted, in light of the fact that no timely appeal was filed from the final order. Reiterating that there is no such thing as a "motion to reconsider" and that a motion filed under Rule 60(b) does NOT toll the running of the appeal period.

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PROCEDURE, TORTS, EVIDENCE :: Divergent interests among co-parties

KOMINAR v. HEALTH MANAGEMENT ASSOCIATES of WEST VIRGINIA, Inc., et al., No. 33215 (ALBRIGHT, J.)(Starcher, J., concurring)(June 7, 2007). Reversing a defense verdict in a medical malpractice action tried before a six-member jury in the Circuit Court of Mingo County. Holding that the trial court erred in granting each of the three defendants three peremptory strikes, because the parties did not prove that a serious, genuine hostility existed among their positions, and further holding that such error requires granting a new trial. Further addressing the propriety of adverse inference instructions as a result of spoliation of medical records. In syllabus point 9, outlining factors to apply when trial courts consider limiting cross-examination. Finally holding, in syllabus point 10, that: "Trial courts should carefully examine whether an adversarial relationship exists between co-parties at the time a motion to limit cross-examination is raised in order to avoid the danger of prejudice, confusion, or delay." Remanding for new trial.

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PROFESSIONAL DISCIPLINE :: Suspension with pay denied

IN THE MATTER OF: CAROLYN D. CRUICKSHANKS, MAGISTRATE FOR BRAXTON COUNTY, No. 33336 (BENJAMIN, J.)(Starcher, J., concurring in part and dissenting in part)(Maynard, J., concurring)(Albright, J., concurring in part and dissenting in part)(June 6, 2007). Upholding a magistrate's suspension without pay following a finding of probable cause that the magistrate had engaged in a serious violation of the Code of Judicial Conduct. Setting forth factors to apply in similar cases, in syllabus point 3: "Always mindful of the primary consideration of protecting the honor, integrity, dignity, and efficiency of the judiciary and the justice system, this Court, in determining whether to suspend a judicial officer with or without pay, should consider various factors, including, but not limited to, (1) whether the charges of misconduct are directly related to the administration of justice or the public's perception of the administration of justice, (2) whether the circumstances underlying the charges of misconduct are entirely personal in nature or whether they relate to the judicial officer's public persona, (3) whether the charges of misconduct involve violence or a callous disregard for our system of justice, (4) whether the judicial officer has been criminally indicted, and (5) any mitigating or compounding factors which might exist."

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PROFESSIONAL DISCIPLINE :: License suspended

LAWYER DISCIPLINARY BOARD v. MICHAEL F. NIGGEMYER, No. 33098 (Per Curiam)(March 20, 2007). Agreeing with recommendations of disciplinary counsel and holding the respondent in contempt for failure to comply with prior orders. Immediately suspending license to practice law and imposing other sanctions.

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PROPERTY, ATTORNEY FEES :: Fees under W.Va. Code 36B-3-116(f)

UNITED BANK, INC., et al. v. STONE GATE HOMEOWNERS ASSOCIATION, No. 33216 (DAVIS, C.J.)(May 10, 2007). Plaintiffs below appealed an order of the Circuit Court of Putnam County denying their requests for costs and attorney's fees under West Virginia Code 36B-3-116(f). Reversing, and holding in syllabus point 5 that: "The plain language of W. Va. Code § 36B-3-116(f) (1986) (Repl. Vol. 2005) requires a judgment or decree in any action brought under W. Va. Code 36B-3-116 to include an award of costs and reasonable attorney's fees for the prevailing party."

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PROPERTY, CONTEMPT, PROCEDURE :: Roadway to subdivision

LYON CHAPMAN & SCOTT CHAPMAN, et al. v. SYLVIA CATRON, No. 33187 (Per Curiam)(May 11, 2007). Defendant below appealed an adverse summary judgment and contempt ruling entered by the Circuit Court of Hampshire County in a case involving a land dispute. Granting mixed relief, and holding that the circuit court properly determined that a roadway to a subdivision was a private dedication. Reversing the circuit court's contempt finding in light of the absence of evidence that the roadway had not been restored to its original condition.

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PROPERTY, NUISANCE, PUBLIC UTILITIES :: Siting certificate doesn't preclude private nuisance

BURCH, et al. v. NEDPOWER MOUNT STORM LLC, et al., No. 33201 (MAYNARD, J.)(Benjamin, J., dissenting)(June 8, 2007). Reversing an order of the Circuit Court of Grant County that dismissed an action that sought to enjoin, under a nuisance theory, the construction of a wind power generating facility. Holding, in syllabus point 8, that: "The right of a person under the common law to bring in circuit court a nuisance claim to enjoin the construction and/or operation of an electric generating facility that is designated under federal law as an exempt wholesale generator is not precluded by the fact that the Public Service Commission of West Virginia has granted a siting certificate to the owner or operator of the facility pursuant to W.Va. Code 24-2-1(c)(1) (2006) and related statutes." Further holding, in syllabus point 11 that: "While unsightliness alone rarely justifies interference by a circuit court applying equitable principles, an unsightly activity may be abated when it occurs in a residential area and is accompanied by other nuisances." Finally holding, in syllabus point 12: "An activity that diminishes the value of nearby property and also creates interferences to the use and enjoyment of the nearby property may be abated by a circuit court applying equitable principles." Remanding for further proceedings.

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PROPERTY, PROCEDURE :: No contempt where service of hearing notice was deficient

BILLY R. TRUMAN v. THOMAS C. AUXIER, No. 33159 (Per Curiam)(April 6, 2007). Auxier appealed an order of the Circuit Court of Clay County finding him in contempt of a prior order, and asserted that he was not timely served with the notice of hearing on Truman's Motion for Contempt. Reversing the Circuit Court's contempt finding, in light of the deficiencies regarding service of the notice of hearing under Rule 6(d) of the Rules of Civil Procedure.

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PROPERTY, INSURANCE, CONTRACTS :: Life tenant policy loss

OPHA L. KEITH ESTATE, BY SHARON BUCKLAND, EXEX. v. DAVID W. KEITH, No. 33131 (ALBRIGHT, J.)(April 19, 2007). Answering a certified question arising from the Circuit Court of Monroe County related to whether, upon the destruction of the real property included in a life estate, a remainderman is entitled to the proceeds from a fire insurance policy that the life tenant applied for and purchased. Holding, in syllabus point 2, that: "Where a life tenant insures the property subject to the life estate in his own name and for his own benefit and pays the premiums from his own funds, he is solely entitled to the proceeds of the insurance upon a loss absent a provision in the instrument creating the estate that requires the life tenant to insure the estate for the benefit of the remainderman; an agreement between the life estate tenant and the remainderman that the estate will be insured for the benefit of the remainderman; or the existence of a fiduciary relationship between the remainderman and the life tenant."

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TORTS :: Causation, limitation on expert testimony

GARY JENKINS v. CSX TRANSPORTATION, INC., No. 33179 (Per Curiam)(Davis, C.J., concurring)(Starcher, J., dissenting)(Albright, J., dissenting)(May 17, 2007). Plaintiff below appealed an order of the Circuit Court of Ohio County that denied a motion for a new trial in a case under the Federal Employer's Liability Act. Affirming, and holding that the trial court did not abuse its discretion in limiting the testimony of the plaintiff's expert in the field of neuropsychology such that he could not give an opinion as to the cause of the plaintiff's alleged brain injury.

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TORTS :: Causation, expert testimony in medical malpractice, disclosures

ESTATE OF FOUT-ISER v. HAHN, et al., No. 33189 (MAYNARD, J.)(Davis, C.J., dissenting)(May 21, 2007). Reversing an order of the Circuit Court of Mineral County that granted summary judgment in favor of a defendant in a medical malpractice action, after determining that plaintiffs failed to produce a medical expert who would testify regarding the standard of care and causation. Clarifying the requirements for such testimony in syllabus points 5 and 6: "When a particular defendant's failure to meet the standard of care is at issue in medical malpractice cases, the sufficiency and nature of proof required is governed by West Virginia Code 55-7B-7(a) (2003), which specifically provides that: 'The applicable standard of care and a defendant's failure to meet the standard of care, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court.' Once it is established that a particular expert is to be used as a standard of care witness, the trial court must determine the qualifications of that expert witness pursuant to W.Va. Code 55-7B-3(a)(1) (2003), which provides that a plaintiff in a medical malpractice action must show that: 'The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances[.]'" Concluding that the expert testimony provided was sufficient to create a material issue of fact regarding the standard of care and causation. Remanded for further proceedings.

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TORTS, EVIDENCE :: Res ipsa loquitur

DAVID R. KYLE v. DANA TRANSPORT, INC., et al., No. 33183 (ALBRIGHT, J.)(Davis, C.J., concurring)(Starcher, J., concurring)(May 15, 2007). Plaintiff, an electrician who was injured when an electrical panel exploded, appealed an order of the Circuit Court of Putnam County that granted judgment in favor of defendants and ruled that plaintiff was not entitled to present his case under a res ipsa loquitur theory. Affirming the circuit court's order, and holding, in syllabus point 4, that: "A plaintiff seeking to apply the doctrine of res ipsa loquitur is required to demonstrate that the evidence he or she intends to present is circumstantial evidence that will lead to reasonable inferences by the jury, and is not simply evidence which would force the jury to speculate in order to reach its conclusion." Further clarifying the evidentiary standards in syllabus point 6: "In order to avoid summary judgment or judgment as a matter of law, a plaintiff who seeks to proceed on a theory of res ipsa loquitur must demonstrate each of the three prongs of the test this Court adopted in syllabus point four of FOSTER v. CITY OF KEYSER, 202 W.Va. 1, 501 S.E.2d 165 (1997), as a predicate to application of the evidentiary rule of res ipsa loquitur."

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TORTS, EVIDENCE :: Judicial notice of somatoform disorder disability decision

ERIC JASON BROOKS v. GALEN OF WEST VIRGINIA, INC., DBA GREENBRIER VALLEY MED CTR., No. 33207 (Per Curiam)(April 19, 2007). Brooks appealed denial of post -trial motions following an adverse jury verdict obtained in the Circuit Court of Greenbrier County in a case alleging medical negligence. Affirming, and holding that the circuit court did not err in taking judicial notice of a Social Security Disability award for somatoform disorder -- a different disorder than alleged at trial -- where the plaintiff acquiesced to introduction of the evidence. Further holding that the circuit court properly excluded certain testimony relating to deviations from the emergency room standard of care.

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TORTS, INSURANCE, DISCOVERY :: Disclosure of case reserves information

STATE ex rel. ERIE INSURANCE PROPERTY & CASUALTY CO. v. MAZZONE et al., No. 33209 (ALBRIGHT, J.)(Starcher, J. concurring)(Benjamin, J., concurring)(June 7, 2007). Denying a writ of prohibition sought by insurer in a third-party bad faith action to prevent enforcement of an order requiring disclosure of relevant reserves information to the plaintiff below. [See prior case involving similar order: SER ERIE INS. PROP. & CAS. Co. v. MAZZONE, 218 W.Va. 593, 625 S.E.2d 355 (2005)("ERIE I").] In syllabus points 4, 5 and 6, setting forth guidance for determining whether case reserves information is privileged from disclosure:

4. When individual case reserves information is set by an attorney or by a non- lawyer representative with the primary intent of preparing for litigation, then the individual case reserves information is subject to protection from discovery as opinion work product pursuant to Rule 26(b)(3) of the West Virginia Rules of Civil Procedure.

5. For the purposes of Rule 26(b)(3) of the West Virginia Rules of Civil Procedure, aggregate reserves documents compiled for specific litigation either by a lawyer or by a non-lawyer representative are opinion work product and merit greater protection from discovery. However, aggregate reserves documents not developed primarily in anticipation of specific litigation but produced for general business purposes are not protected by the work product rule.

6. Reserves documents determined to be opinion work product are generally protected from disclosure under the provisions of Rule 26(b)(3) of the West Virginia Rules of Civil Procedure unless the party seeking discovery demonstrates compelling need for the materials, which shall include proof that the opinion materials qualify for a recognized exclusion from application of the work product doctrine.

With regard to the disclosures at issue, holding that there was no basis in the limited record to conclude that the reserves were set for reasons other than the ordinary course of business, and that Erie did not prove that the principal reason for setting the reserves was anticipation of litigation.  [Permanent Link]  Google It! 

TORTS, PROCEDURE :: Tolling statute of limitations due to insanity

MICHAEL WORLEY, et al. v. BECKLEY MECHANICAL, INC., et al., No. 33190 (MAYNARD, J.)(Davis, C.J., dissenting)(Starcher, J., concurring)(Benjamin, J., dissenting)(May 17, 2007). Plaintiffs appealed following a bench trial in the Circuit Court of Raleigh County on the issue of whether plaintiff was under a disability that either suspended or tolled the running of the statute of limitations in this personal injury action. Examining legislative intent in construing W.Va. Code 55-2-15, and finding that a literal application of the statute's language potentially excludes from protection many persons the statute was intended to protect. Reversing, and setting forth evidentiary guidelines in syllabus point 4: " In order for mental illness to toll the commencement of the running of the statute of limitations pursuant to W.Va. Code 55-2-15 (1923), the plaintiff must show that the interval between the tortious act and the resulting mental illness was so brief that the plaintiff, acting with diligence, could not reasonably have taken steps to enforce his or her legal rights during such interval."

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TORTS, PRODUCTS LIABILITY :: Learned intermediary exception rejected

STATE ex rel. JOHNSON & JOHNSON CORP., etc. v. KARL, et al., No. 33211 (DAVIS, C.J.)(Starcher, J., concurring)(Maynard, J., concurring)(Albright, J., dissenting)(Benjamin, J., dissenting)(June 27, 2007). Denying a writ of prohibition sought by pharmaceutical company to prevent enforcement of an order of the Circuit Court of Marshall County. Holding, in syllabus point 3, that: "Under West Virginia products liability law, manufacturers of prescription drugs are subject to the same duty to warn consumers about the risks of their products as other manufacturers. We decline to adopt the learned intermediary exception to this general rule."

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TORTS, STATUTORY CONSTRUCTION :: Pharmacies not included in MPLA

PHILLIPS v. LARRY'S DRIVE-IN PHARMACY, INC., No. 33194 (STARCHER, J.)(Maynard, J., concurring)(June 28, 2007). Answering certified question from the Circuit Court of Boone County in a case where a plaintiff alleges that a pharmacy negligently filled a prescription. In construing the provisions of the 1986 Medical Professional Liability Act, holding, in syllabus point 5, that: "Where there is any doubt about the meaning or intent of a statute in derogation of the common law, the statute is to be interpreted in the manner that makes the least rather than the most change in the common law." Although affidavits were submitted from several legislators who participated in the conference committee involving the legislation at issue, holding that the circuit court did not abuse its discretion in refusing to consider the affidavits in assessing legislative intent; although information in the affidavits is persuasive, "the information is not corroborated by the legislative history because the Legislature failed to preserve any record of the committee meetings to which the affidavits refer. Furthermore, the affidavits go beyond reciting the history behind the MPLA's enactment and instead detail each legislator's opinion about the proper interpretation of the statute." Finally holding, in syllabus point 7, that: "A pharmacy is not a 'health care provider' as defined by the Legislature in W.Va. Code, 55-7B-2(c) [1986]" and is therefore not entitled to the protections set forth therein.

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WILLS & ESTATES, PROCEDURE :: Testator's personal representative not removed, scope of appellate review

HAINES v. KIMBLE, No. 32844 (Per Curiam)(Davis, C.J., dissenting)(Starcher, J., concurring)(Maynard, J., dissenting)(June 28, 2007). Upon rehearing, affirming an order of the Circuit Court of Hampshire County that affirmed an order of the County Commission of Hampshire County that denied a petition by the appellant to remove a designated executrix. Holding that the circuit court properly limited its review to the record made before the county commission, which did not include many of the claims of mal-administration currently asserted. Of the claims properly asserted and made part of the record, neither were sufficient to compel removal of the executrix. Further holding that the appellant failed to prove hostility sufficient to remove the executrix. In view of the deference to be accorded a testator's selection of a fiduciary, any hostility, without more, is an insufficient basis for removal of the designated executrix.

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WORKERS' COMPENSATION, PROCEDURE :: No entitlement to original jurisdiction relief to pay damages for mental-mental injury

STATE ex rel. DONALD DARLING v. DARRELL V. McGRAW, JR., ATTORNEY GENERAL, et al., No. 33210 (Per Curiam)(Davis, C.J., concurring)(Starcher, J., concurring in part and dissenting in part)(Albright, J., concurring in part and dissenting in part)(June 28, 2007). Denying a writ of mandamus sought to compel payment of damages for chronic depression and migraines alleged to have arisen in the course of and resulting from his employment by the Attorney General. In the absence of a physical impact, workers' compensation benefits were denied, and the petitioner sought relief for the so-called "mental-mental" injury under the stop-gap provision of the state's comprehensive liability policy. Holding that the petitioner is not entitled to relief in mandamus, in light of the fact that he did not demonstrate a clear right to the relief he seeks and cannot demonstrate a legal duty on the part of his employer to act as requested.

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Opinion summary Issue #92

Today I'll be posting the contents of Issue #92 of the opinion summary service. The most recent issue covers the last 45 opinions issued in the January 2007 term of court.

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