SER MANTZ v. ZAKAIB, et al., No. 31856 (MAYNARD, C.J.)(Albright, J., disqualified)(Swope, Judge, by special assignment)(Starcher, J. and McGraw, J., dissenting)(November 17, 2004). Granting a moulded writ of prohibition arising from a request by plaintiffs/petitioners to prohibit the special masters and discovery commissioners appointed by the circuit court from presiding over the underlying class action, arguing that they should be disqualified based upon a conflict of interest. Holding that the conduct of special masters is clearly governed by the Code of Judicial Conduct, and directing the trial court to reconsider the petitioners' motion to disqualify the special masters in light of that holding.

SER COSENZA v. HILL, No. 31756 (Per Curiam)(Albright, J., disqualified)(Sanders, Judge, by temporary assignment)(November 12, 2004). Denying a writ of prohibition sought to prevent the enforcement of an order of the Circuit Court of Wood County that disqualified the petitioners and their law firm from representing a client who was a plaintiff in civil litigation, where a lawyer in the petitioner's firm had previously been associated with another law firm that had represented the defendant in the civil litigation. Holding that in light of the office schematic and dynamics associated with the former law firm, it is likely that the attorney would have been exposed to discussions regarding the former law firm's representation of the defendant, such that the knowledge of such confidences could be imputed to the lawyer and the petitioner's law firm.

BASS v. ROSE, No. 31402 (Per Curiam)(Maynard, C.J. and Davis, J., dissenting)(November 12, 2004). Reversing an order of the Circuit Court of Berkeley County, entered upon remand following BASS v. COLTELLI-ROSE, 207 WV 730, 536 SE2d 494 (2000). On remand, the circuit court directed refund of a contingent fee for recovery of medical payment insurance benefits. Holding that the circuit court's review of the fees charged violated the law of the case, and that its segmented activity method of review was contrary to that articulated in LAWYER DISCIPLINARY BOARD v. MORTON, 212 WV 165, 569 SE2d 412 (2002).

SER CITY HOLDING CO. v. KAUFMAN, et al., No. 31783 (Per Curiam)(McGraw, J., dissenting)(November 12, 2004). Denying a writ of prohibition sought to prevent enforcement of an order denying petitioner's motion to dismiss and enjoining arbitration proceedings. The petitioner and respondent Dawson disputed whether Dawson's attempted exercise of stock options was subject to a binding arbitration clause in the severance agreement. Holding that the language of the severance agreement contained a clear and unambiguous carve-out provision, which effectively removed the stock options from the scope of the arbitration clause.

FALCON TRANSPORT CO. v. BOYD, et al., No. 31671 (MAYNARD, C.J.)(Davis, J., concurring)(Starcher, J., concurring)(November 29, 2004). Affirming order of the Circuit Court of Brooke County that denied defendant's post-trial motions following a jury trial in which the jury found that the appellant committed fraud against the four appellees and awarded each of them $75,000 in compensatory damages and $250,000 in punitive damages. Rejecting an argument that the punitive damages award violated the principles announced in State Farm v. Campbell, 538 US 408 (2003). Further holding, in syllabus point 1, that: "A State has a legitimate interest in imposing damages to punish a defendant for unlawful acts committed outside of the State's jurisdiction where the State has a significant contact or significant aggregation of contacts to the plaintiffs' claims which arise from the unlawful out-of-state conduct." Further holding that the punitive damages award was not unconstitutionally excessive.

COOK v. COOK, No. 31703 (ALBRIGHT, J.)(Davis, J., concurring)(November 15, 2004). Answering a certified question from the Circuit Court of Kanawha County, arising from a case where the plaintiff sought to recover future Air National Guard benefits and wages that she allegedly lost as a result of the defendant's negligence; plaintiff contends that because of the injuries she sustained she was involuntarily discharged from the Air National Guard but also became ineligible for reenlistment. Holding that proof of a permanent medical injury is not an essential prerequisite to sustain a claim for lost future wages and benefits. Syllabus point 5: "The test governing future damages as set forth in syllabus points seven and nine of JORDAN v. BERO, 158 W.Va. 28, 210 S.E.2d 618 (1974), requires that either the negligently inflicted injury or its direct consequences be proven by a reasonable degree of certainty to have a lasting, permanent future effect."

McKENZIE v. CARROLL INTERNATIONAL CORPORATION, et al., No. 31721 (DAVIS, J.)(Starcher, J., concurring)(November 12, 2004). Reversing an order of the Circuit Court of Mineral County that denied plaintiff's motion for new trial following a jury verdict for the defendant in an employment discrimination case. Determining that the circuit court erred in preventing the plaintiff from presenting the testimony of nonlitigant employees regarding age discrimination by the defendant, and holding that raw data isn't the exclusive means for establishing age discrimination, and may be supplemented with testimony by employees or former employees that is relevant to the type of employment discrimination alleged by the plaintiff. Holding further that the admissibility of a no probable cause determination by the Human Rights Commission is discretionary, and that the circuit court did not err by granting the plaintiff's motion to exclude that determination, on the condition that the plaintiff not present evidence of other information within the administrative record.

DRAKE v. SNIDER, et al., No. 31655 (Per Curiam)(November 12, 2004). Reversing an order of the Circuit Court of Mingo County that granted summary judgment in favor of the defendants - a claims representative and an insurance company - in an action alleging bad faith. Holding that the circuit court erred in failing to grant the plaintiff's motion under Rule 56(f) to conduct discovery, especially in light of the fact that no scheduling order had been entered formalizing the discovery requirements. Further holding that the circuit court was clearly wrong in finding that a fifteen year-old - who was living with her mother to attend a different high school - was not an "unemancipated child away at school" under her father's policies. Finally, resolving an ambiguity in the definition of "non-owned car" arising from use of the term "household," and holding that the vehicle driven by the fifteen year-old qualified as a non-owned vehicle under the policies because it was not clearly owned by anyone residing in her domicile.

HAINES v. HAMPSHIRE COUNTY COMMISSION, et al., No. 31702 (Per Curiam)(November 15, 2004). Affirming an order of the Circuit Court of Hampshire County that dismissed the plaintiff's complaint against the county commission and the county animal control officer, which sought damages arising from the adoption of their dog after its impoundment. Holding that the county dog warden acted properly and within statutory authority, and the appellants failed to state any viable claims for which they are entitled to relief.

SER BRONSON v. WILKES, et al., No. 31775 (Per Curiam)(November 17, 2004). Granting a writ of prohibition to prevent enforcement of an order directing the petitioner to pay attorney's fees and expenses. Holding that there is no authority for an award of fees and expenses where the award is based upon a determination that the losing party acted in good faith in attempting to enforce a settlement agreement.

SER BROOKS v. ZAKAIB, No. 31782 (MAYNARD, C.J.)(Starcher, J., concurring)(November 15, 2004). Granting a moulded writ of prohibition relating to use of records that were obtained from the Grant County Circuit Court via a FOIA request that plaintiff below intended to use in a medical malpractice action pending in Kanawha County Circuit Court. In the previous opinion (BROOKS I, 214 WV 253, 588 SE2d 418), the Court directed the Kanawha County Circuit Court to determine whether the documents released to the plaintiff (including peer review materials) had been protected by a protective order or an order sealing the records, by conducting a review of the transcript of the Grant County proceedings. The Grant County Circuit Court subsequently entered a nunc pro tunc order sealing the court file, and the Kanawha County Circuit Court interpreted that order as preventing use of the records in the Kanawha County case. In light of the clear guidance provided in BROOKS I, holding that the Kanawha County plaintiff should have been given notice and an opportunity to be heard in Grant County, stating in syllabus point 2: "When a hearing before a circuit court solely concerns matters that substantially affect the legal rights of parties in a separate suit, and the circuit court has knowledge that such rights will be affected, the circuit court must provide notice to those parties." Directing a full hearing before the Grant County Circuit Court regarding the nunc pro tunc order, with notice to counsel for plaintiff, "who shall have a right to appear and participate in the hearing."

LAWYER DISCIPLINARY BOARD v. KEITH L. WHEATON, No. 31275 (Per Curiam)(Starcher, J., and McGraw, J., dissenting). Adopting a recommended disposition of annulment based upon a determination that Mr. Wheaton committed thirty-one violations of the Rules of Professional Conduct.

STEWART v. GEORGE, et al., No. 31667 (Per Curiam)(November 15, 2004). Reversing an order of the Circuit Court of Cabell County that granted summary judgment in favor of the defendants in a medical malpractice action. Holding that the circuit court erred in determining that no material issue of fact remained as to whether a deviation from the standard of care caused the plaintiff's injuries.

MAPLEWOOD COMMUNITY, INC. v. CRAIG, STATE TAX COMM'R, et al. -AND- MON ELDER SERVICES, INC. v. MONONGALIA COUNTY COMM'N, et al., Nos. 31657 & 31658 (per Curiam)(Starcher, J., concurring)(November 12, 2004). Affirming judgments of the Circuit Court of Harrison County and the Circuit Court of Monongalia County related to the denial of exemptions from ad valorem property tax. Holding that operators of assisted and independent living facilities for seniors, despite their status as charitable organizations for federal income tax purposes, do not qualify under state law as organizations whose property is used exclusively for charitable purposes, and therefore are not exempt from state property tax under the statutory and regulatory framework. Remanding the limited issue of the taxability of Mon Elder's leasehold interest for further proceedings.