PROCEDURE

Denise Perdomo and Nathaniel Perdomo and his next friend, Herbert Perdomo v. Melanie Stevens and her next friend, William R. Stevens, No. 23197 (W. Va. July 18, 1996) (Recht, J.):

Reversing the award of costs because the plaintiffs refused what the trial court believed to be a reasonable offer of settlement, the Court held (1) the record must contain specific findings when costs are assessed against the losing party pursuant to R. Civ. P. 54(d) and (2) in order to assess costs under R. Civ. P. 54(d), its provisions, including the requirement of a timely offer of judgment or payment of a settlement amount into court, must be strictly followed.

George McGuire and Judith McGuire v. Robert P. Fitzsimmons and Fitzsimmons and Parsons, L.C., No. 23180 (W. Va. July 17, 1996) (McHugh, C.J.):

Where clients sued attorney for malpractice in the county in which they resided and in which the underlying suit was filed, the Court held that (1) in determining venue under W. Va. Code § 56-1-1(a)(1) in attorney malpractice cases, a circuit court can find proper venue in either (i) the defendant's county of residence or (ii) where the cause of action for attorney malpractice arose, and (2) in determining where a cause of action for attorney malpractice arose, venue is proper (i) where the contract for legal services was executed, (ii) where the alleged breach of duty occurred, or (iii) where the manifestation of the alleged breach, i.e., where the damages, resulted.

Larry E. Alkire v. First National Bank of Parsons, a national banking association v. Mosler, Incorporated, a Delaware corporation, No. 23125 (W. Va. July 15, 1996) (Recht, J.):

Reversing vacation of a $1.05 million punitive damages award and remanding for further proceedings, the Court held (1) only if the evidence presented at trial, viewed in the light most favorable to the nonmoving party, was legally insufficient to support the verdict, will the denial of a JNOV motion be reversed on appeal; (2) only if the evidence presented at trial, viewed in the light most favorable to the nonmoving party, was legally sufficient to support the verdict, will the granting of a JNOV motion be reversed on appeal; and (3) appellate review of JNOV decisions is conducted de novo.

Betty A. Brannon, Executrix of the Estate of John V. Brannon, Robert B. Cleghorn, Jr., Albert Whaley, and Betty Brannon v. Kenneth H. Riffle and Barbara Cleghorn Riffle, No. 23179 (W. Va. July 12, 1996) (Workman, J.):

Reversing a directed verdict in an action to enforce certain buy/sell agreements regarding a pipeline and mineral leases, the Court held that (1) the standard of review for directed verdicts is de novo and (2) if reasonable minds could have differed regarding the sufficiency of proof, considering the evidence in the light most favorable to the nonmoving party, then a circuit court's entry of a directed verdict will be reversed on appeal.

State of West Virginia ex rel. Metropolitan Life Insurance Company v. Honorable Larry V. Starcher, Judge of the Circuit Court of Monongalia County, and Lawrence Holt, et al., No. 23382 (W. Va. July 12, 1996) (Workman, J.):

Prohibiting further proceedings in a class action "churning" case instituted by policyholders who complain regarding the sale of "new" or "replacement" life insurance polices until class definition and the mechanism for identifying class members were further refined, the Court held that (1) it is not required that each class member be identified, but only that the class can be "objectively defined;" (2) class certification may not be defeated by a claim that the class definition may include some members who do not have valid claims because class certification is always conditional and may be altered as the case progresses toward resolution; and (3) prior to class certification under R. Civ. P. 23, the class must be defined with sufficient specificity so that it is administratively feasible for the court to ascertain whether particular individuals fall within the class certified.

Joseph Richardson, Personal Representative of the Estate of Richard Walter Richardson v. George Kennedy, M.D., and Charles Town General Hospital, Inc., dba Jefferson Memorial Hospital, No. 22779 (W. Va. July 5, 1996) (Recht, J.):

Where appellant moved orally for "reconsideration" of the trial court's dismissal of a wrongful death action because the decedent's estate had been closed, the Court held (1) an oral motion requesting reconsideration of an oral decision to dismiss a complaint, if stating the grounds therefor with particularity, is a timely "motion to alter or amend a judgment" sufficient to satisfy the requirements of R. Civ. P. 7(b) and 59(e), and (2) when the ground for the dismissal of a case is that the real party in interest did not institute the action, the trial court should defer dismissal until a reasonable opportunity is given to the plaintiff to permit qualification of a real party in interest pursuant to R. Civ. P. 17(a).

State of West Virginia ex rel. Charleston Area Medical Center, Inc. v. Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, and Christine Thomas, No. 23342 (W. Va. July 5, 1996) (Albright, J.):

Reversing the R. Civ. P. 41(b) reinstatement of an action dismissed pursuant to R. Civ. P. 4(l) after the summons and complaint were not served within the mandatory 180 days, the Court held that dismissal under R. Civ. P. 4(l) is mandatory where good cause for failure to effect timely service is not demonstrated pursuant to a R. Civ. P. 59(e) or 60(b) motion.

P. Jane Hustead, Guardian ad Litem, etc., et al. v. Ashland Oil, Inc., No. 23169 (W. Va. June 17, 1996) (Workman, J.):

Rejecting an attempt by a guardian ad litem to challenge, post-judgment, through a declaratory judgment action, the settlement of cases in behalf of infant plaintiffs, the Court held (1) when a court approves a settlement by entry of a judgment order pursuant to W. Va. Code § 56-10-4, the judgment, if unappealed, becomes final and subject to the doctrine of res judicata; (2) although R. Civ. P. 60(b) permits collateral attack on a final judgment, it is available only when one of the enumerated circumstances stated therein is present; (3) a declaratory judgment cannot be used as a substitute for a direct appeal; and (4) in determining whether a declaratory judgment action should be heard, the court must decide (i) whether the claim involves uncertain and/or contingent events that may not occur, (ii) whether the claim is dependent upon facts, (iii) whether there is adversarialness among the parties, and (iv) whether a declaration would settle the underlying controversy.

Dennis Bartles and Maria Bartles v. Morgan A. Hinkle, William P. Hinkle, M Pizza, Inc., Domino's Pizza, Inc., No. 23062 (W. Va. June 14, 1996) (Cleckley, J.):

Affirming a $10,000 discovery sanction despite the fact that the sanctioned party prevailed in the case, the Court held (1) although R. Civ. P. 11, 16, and 37 do not require any certain procedure to be used in the imposition of sanctions, due process mandates that the misconduct punished have impacted or had the potential of impacting the underlying litigation; (2) before imposing a sanction pursuant to R. Civ. P. 11, 16 or 37, the court must (i) identify the allegedly wrongful conduct, (ii) determine whether such conduct warrants sanction, (iii) explain its reason(s) for imposing sanctions, and (v) consider the seriousness of conduct, the impact of the conduct on the case in particular and the administration of justice in general, any mitigating or aggravating circumstances, and whether the conduct was isolated or part of a pattern; and (3) the award of an attorney fee as a sanction is authorized by R. Civ. P. 37(b) and will not be disturbed on appeal except for an abuse of discretion.

Kopelman and Associates, L.C., a West Virginia corporation v. Peggy L. Collins and Gregory M. Courtright, individually and dba Collins and Courtright, a partnership, No. 23183 (W. Va. June 14, 1996) (Cleckley, J.):

Where circuit court mischaracterized its ruling as a R. Civ. P. 12(c) judgment on the pleadings, but considered matters outside the pleadings, thereby converting such judgment to summary judgment under R. Civ. P. 56, the Court clarified that (1) when a motion for judgment on the pleadings under R. Civ. P. 12(c) is converted into a motion for summary judgment under R. Civ. P. 56, then the requirements of the latter rule become operable, requiring the circuit court to give the parties notice of the changed status of the motion and a reasonable opportunity to present all evidentiary material made pertinent; (2) the absence of formal notice of conversion of a R. Civ. P. 12(c) motion to a R. Civ. P. 56 motion will be excused only when it was harmless and/or the parties were otherwise apprised of the conversion; and (3) once a R. Civ. P. 12(c) motion is converted to a R. Civ. P. 56 motion, the moving party's burden changes to demonstrating (i) the existence of no genuine issue of material fact and (ii) entitlement to judgment as a matter of law.

Powderidge Unit Owners Association v. Highland Properties, Ltd.; Virginia Homes Manufacturing Corporation; Rust, Orling & Neale Architects; and the Home Insurance Company, No. 23105 (W. Va. June 14, 1996) (Cleckley, J.):

Affirming the award of summary judgment where the circuit court determined that the action for negligent design and construction of certain condominium units was barred by the statute of limitations, the Court held (1) although a request for further discovery under R. Civ. P. 56(f) need not comply strictly with every provision of the rule, it must, at a minimum (i) be in writing, (ii) be filed in a timely manner, (iii) articulate some plausible basis for the party's belief that specific "discoverable" material facts likely exist which are not then currently known to the party, (iv) demonstrate some realistic prospect that the material facts can be obtained within a reasonable period of time, (v) demonstrate that the material facts, if obtained, will create a genuine issue of material fact, and (vi) demonstrate good cause for failing to discover the material facts earlier in the litigation, and (2) when a motion for reconsideration does not indicate under which rule it is filed, it will be considered a R. Civ. P. 59(e) motion if filed within ten days of judgment and a R. Civ. P. 60(b) motion if filed outside ten days of judgment.

David D. Gentry and Nancy Gentry v. R. Michael Mangum, Sheriff of Raleigh County, et al., No. 22845 (W. Va. December 8, 1995) (Cleckley, J.): 195 W.Va. 512, 466 S.E.2d 171:

Reversing a summary judgment against a deputy injured in a shootout as he attempted to retrieve his shotgun from the trunk of his vehicle, the Court held (1) summary judgment is proper only if no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law; (2) a party seeking summary judgment has the initial burden of establishing that there is no genuine issue of material fact; (3) once the movant has made a preliminary showing that there is no genuine issue of material fact, the nonmovant must demonstrate specific facts presenting a trial worthy issue; (4) an expert's conclusory opinion is alone insufficient to establish a trial worthy issue in opposition to a motion for summary judgment; (5) an expert's elucidated opinion may be alone sufficient to establish a trial worthy issue in opposition to a motion for summary judgment; and (6) an issue of material fact is "genuine" when the evidence relevant to it, viewed in a light most favorable to the nonmoving party, is sufficient to permit a rational fact finder to resolve it in favor of either side.

John Mark Copley v. Mingo County Board of Education; Edward Keith, President; Ted Warden, June Glover, Lossie Mahone, Tom Brewer, members; Everett Conn, Superintendent of Schools, No. 22877 (W. Va. December 8, 1995) (Workman, J .): 195 W.Va. 480, 466 S.E.2d 139:

Where teacher initially selected as coach was removed from the position after another applicant was awarded the position pursuant to a grievance, the Court affirmed dismissal on the pleadings of contract claim, but remanded in quantum meruit claim for further development, holding that (1) appellant review of a judgment on the pleadings is de novo; (2) a motion for judgment on the pleadings presents a challenge to the legal implications of a set of facts, rather than any proof of such facts, and should be resolved in the same manner as a R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, excepted when it is apparent that the deficiency cannot be cured by amendment to the complaint; and (3) a circuit court may grant a motion for judgment on the pleadings only where it appears beyond doubt, viewing all facts in a light most favorable to the nonmoving party, that the nonmoving party can prove no set of facts in support of his or her claim or defense.

Nancy Darlene M. v. James Lee M., Jr., No. 22765 (W. Va. November 17, 1995) (McHugh, C.J.): 195 W.Va. 153, 464 S.E.2d 795:

Reversing an order which relieved an ex-husband of accrued support of a child born during his marriage whom was later determined not to have been fathered by the ex-husband, the Court held that R. Civ. P. 60(b)(5), which permits relief from a judgment where "it is no longer equitable that the judgment should have prospective application," is ordinarily limited to where controlling circumstances of the action have changed subsequently to entry of the judgment and cannot be used as a substitute for appeal.

State of West Virginia ex rel. Wanda Sue Riffle and Edward Riffle v. Honorable Lyne Ranson, Judge of the Circuit Court of Kanawha County; Gretchen Lewis, Secretary, Department of Health and Human Resources; James Turner; John Riffle; and Ramsay Health Care, Inc., No. 22961 (W. Va. October 27, 1995) (Cleckley, J.): 195 W.Va. 121, 464 S.E.2d 763:

Prohibiting transfer of a sexual harassment case from Kanawha to Lewis County, the Court held that W. Va. Code § 56-1-1(b) abolished the doctrine of forum non conveniens with respect to intrastate transfer of cases and establishes the exclusive authority in this State for such transfers.

Jackson General Hospital v. Joseph D. Davis, No. 22848 (W. Va. October 27, 1995) (McHugh, C.J.): 195 W.Va. 74, 464 S.E.2d 593:

Overturning a default judgment against a prisoner/defendant where no answer was filed by the guardian ad litem appointed to represent such prisoner/defendant, the Court held where a guardian ad litem has been appointed pursuant to R. Civ. P. 17(c) to defend an incarcerated convict who has been properly served with process fails to appear, plead, or otherwise defend such convict, the circuit court, prior to entry of default judgment, has a duty, pursuant to R. Civ. P. 55(b) to make an investigation or conduct a hearing upon the record concerning the guardian ad litem's representation of the convict and, in addition, may order that the guardian ad litem be served with written notice of the motion for default judgment, as if the guardian ad litem had appeared in the action.

Rex Jividen, Executor of the Estate of Delvious Jividen v. Robert Law and Joyce Law v. Paul Kovacs, Barbara Kovacs, and William Penn Home Farm, No. 22513 (W. Va. July 11, 1995) (Workman, J): 194 W.Va. 705, 461 S.E.2d 451:

Affirming the award of summary judgment for the defendants in a wrongful death case where a horse killed the decedent, the Court held that (1) a cause of action that typically raises factual issues is insufficient to withstand a motion for summary judgment where the plaintiff has not affirmatively demonstrated a dispute regarding a fact that could be case dispositive and (2) an affidavit by an expert witness offering an opinion which would ordinarily raise a genuine issue of material fact regarding liability is insufficient to withstand a motion for summary judgment where the opinion is conclusory and without legitimate rationale.

State of West Virginia ex rel. Arrow Concrete Company, a West Virginia corporation; Arrow Industries Corporation, an Ohio corporation; and Paul Burge, Jr. v. Honorable George W. Hill, Jr., Judge of the Circuit Court of Wood County, and On Target Concrete, Inc., No. 22842 (W. Va. June 19, 1995) (McHugh, C.J.): 194 W.Va. 239, 460 S.E.2d 54:

Denying a writ of prohibition against a discovery order allegedly requiring the production of business secrets in the context of a private antitrust suit, the Court held that the denial of a motion for failure to state a claim upon which relief can be granted pursuant to R. Civ. P. 12(b)(6) is ordinarily interlocutory and not appealable.

Janet M. Tennant and Larry B. Tennant v. Marion Health Care Foundation, Inc., aka Marion Health Care Hospital; Candace Chidester, M.D.; and Patricia K. Endress, D.O., No. 22642 (W. Va. June 15, 1995) (Cleckley, J.): 194 W.Va. 97, 459 S.E.2d 374:

Reversing a JNOV in a medical malpractice case, the Court held (1) contrary to prior decisions, which the Court overrules, a substitute judge's ruling on post-verdict motions will be reviewed under the same standards as if the ruling had been rendered by the original judge; (2) a new trial based upon an appearance of impropriety resulting from the presiding judge's participation is unwarranted where (i) there has been a full trial on the merits, (ii) there is no obvious err during the proceedings over which the judge presided, (iii) the record demonstrates no prejudicial impact on the proceedings, and (iv) the failure to disclose circumstances that might have warranted disqualification was inadvertent; (3) a trial court has the exclusive authority to determine when and to what extent to modify an in limine order; and (4) the cumulative error doctrine may be applied in civil cases where several errors were committed that, although alone insufficient to warrant reversal, combine to render the judgment inherently unreliable.

George W. Evans v. Jack E. Holt and John Doe, dba Casturo Transportation Service, No. 22342 (W. Va. April 14, 1995) (Workman, J.): 193 W.Va. 578, 457 S.E.2d 515:

Reversing an entry of default judgment based on service upon a trucking company's driver, the Court, adopting a strict compliance approach to statutory and regulatory service of process requirements, held that (1) where mail is returned marked "insufficient address," service of process is incomplete; (2) in order for a duly authorized agent to effectively accept service of process in behalf of a nonresident defendant, there must be clear, unambiguous notice by the secretary of state to the nonresident defendant's duly authorized agent that a copy of the summons and complaint is being served in such agent's representative, rather than individual, capacity; and (3) W. Va. Code § 56-3-31(g) requires plaintiff to file with the clerk of the circuit court an affidavit containing certain information in order to properly effect service upon a nonresident defendant's insurance company.

Laurence Dupuy and Sheila Dupuy v. Earl D. Allara, No. 22219 (W. Va. April 14, 1995) (Fox, J.): 193 W.Va. 557, 457 S.E.2d 494:

Affirming a defense verdict in a medical malpractice case following a trial interrupted by a thirteen day recess, the Court held that whether a trial court has abused its discretion in granting a recess or temporary adjournment of a civil trial depends upon (i) the degree of prejudice to the complaining party, (ii) the reasons necessitating the recess or temporary adjournment, (iii) the alternatives available to have avoided the recess or temporary adjournment, and (iv) the length of the recess or temporary adjournment.

Mark Williams v. Precision Coil, Inc., No. 22493 (W. Va. March 24, 1995) (Cleckley, J.): 194 W.Va. 52, 459 S.E.2d 329:

Affirming the award of summary judgment in an employee handbook case, the Court held that (1) summary judgment is appropriate if, from the totality of the evidence, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party had failed to make a sufficient showing on an essential element of the case that it has the burden of proving and (2) if the moving party on a motion for summary judgment shows, from an evidentiary standpoint, that there are no genuine issues of material fact, the burden of production shifts to the nonmoving party who must either (i) rehabilitate the evidence attacked by the moving party, (ii) produce additional evidence demonstrating a genuine issue of material fact, or (iii) submit an affidavit explaining the reason further discovery is necessary pursuant to R. Civ. P. 56(f).

In re: State of West Virginia Public Building Asbestos Litigation, Nos. 22023, 22024, and 22025 (W. Va. December 21, 1994) (McHugh, J.): 193 W.Va. 119, 454 S.E.2d 413:

Affirming the award of a new trial in an asbestos abatement case, the Court held that a motion for new trial is governed by a different standard than a motion for directed verdict and, accordingly, if the trial judge finds the verdict is against the clear weight of the evidence, is based on false evidence, or will result in a miscarriage of justice, the trial judge may set aside the verdict, even if supported by substantial evidence, and award a new trial, and such decision is not subject to appellate reversal unless the trial judge has abused his or her discretion.

Sandra K. Michael, as Administratrix and Personal Representative on Behalf of the Estate of Randi Nichole Michael v. Francisco D. Sabado, Jr., M.D., No. 22032 (W. Va. December 21, 1994) (Cleckley, J.): 192 W.Va. 585, 453 S.E.2d 419:

Mabel Bass v. Laura Coltelli and Douglas Bass, No. 22304 (W. Va. December 12, 1994) (Miller, J.): 192 W.Va. 516, 453 S.E.2d 350:

Dismissing a certified question proceeding on procedural grounds, the Court held (1) questions subject to certification pursuant to W. Va. Code § 58-5-2 are limited to any question arising upon the sufficiency of a summons or return of service, upon a challenge of the sufficiency of a pleading or the venue of the circuit court, upon the sufficiency of a motion for summary judgment where such motion is denied, or a motion for judgment on the pleadings, upon the jurisdiction of the circuit court of a person or subject matter, or upon failure to join an indispensable party and (2) even where certification is from denial of a motion for summary judgment, such case will not be accepted unless there is a sufficiently precise and undisputed factual record upon which legal issues which substantially control the case can be determined.

Mildred L.M. v. John O.F., No. 22037 (W. Va. December 8, 1994) (Cleckley, J.): 192 W.Va. 345, 452 S.E.2d 436:

On an appeal from a denial of a JNOV where blood tests established paternity to a 99% probability, the Court held that, on an appeal from a ruling on a motion for a JNOV, the appellate court's function is to determine whether, viewing the evidence in the light most favorable to the nonmoving party, such evidence was legally sufficient to support the ultimate judgment.

Cannelton Industries, Inc. v. Aetna Casualty & Surety Company of America, et al., No. 22015: 194 W.Va. 203, 460 S.E.2d 18:

Affirming dismissal of a West Virginia action under the doctrine of forum non convieniens in favor of Michigan, where the subject property is located, the Court held (1) a circuit court's decision to invoke the doctrine of forum non conveniens will not be reversed unless it has abused its discretion; (2) the phrase in a service of suit clause stating that the insurer "will submit to the jurisdiction of any Court of competent jurisdiction" does not preclude the insurer from instituting an action in another forum and filing a forum non conveniens motion in the forum selected by the insured; and (3) the phrase in a service of suit clause "all matters arising hereunder shall be determined in accordance with the law and practice of" the court selected by the insured includes the doctrine of forum non conveniens.

State of West Virginia ex rel. McDowell County Sheriff's Department, Sheriff R.J. Allen; Chief Deputy John Church; and Deputy Sheriffs Ronald Blevins, John Doe, Richard Rowe, and others whose identities are unknown v. Honorable Booker T. Stephens, Judge of the Circuit Court of McDowell County, Sheila Gagean, and Gene Gagean, No. 22443 (W. Va. December 8, 1994) (McHugh, J.):192 W.Va. 341, 452 S.E.2d 432:

Prohibiting the reinstatement of a case dismissed pursuant to R. Civ. P. 37 as a discovery sanction, the Court held that a party whose case is dismissed pursuant to R. Civ. P. 37 may either (1) appeal the dismissal under W. Va. Code § 58-5-4 within the four month appeal period; (2) file a motion to alter or amend the judgment under R. Civ. P. 59(e) within ten days; or (3) file a motion under R. Civ. P. 60(b) within eight months.

State of West Virginia ex rel. Charles S. Smith v. Honorable Elliott E. Maynard, Special Judge of the Circuit Court of Kanawha County, and Cleve Benedict, No. 22494 (W. Va. November 18, 1994) (Cleckley, J.): 193 W.Va. 1, 454 S.E.2d 46:

Issuing a writ of prohibition against the transfer of a case under the doctrine of forum non conveniens, the Court held (1) W. Va. Code § 56-1-1 permits a defendant to move to transfer a case to a county in which one or more of the defendants reside when a suit is instituted in the county where the cause of action arose but where none of the defendants reside; (2) in determining whether to transfer an action pursuant to W. Va. Code § 56-1-1, the trial court must determine whether the proposed county would be more convenient to the parties and to the witnesses, and would serve the ends of justice; (3) where the requisite criteria of W. Va. Code § 56-1-1 have been satisfied, the principle of plaintiff's choice of forum and the doctrine of forum non conveniens are inapplicable because such statute controls exclusively the transfer of a case to another county; (4) only where the requisite criteria of W. Va. Code § 56-1-1 are not present does the doctrine of forum non conveniens apply; and (5) a trial court's application of W. Va. Code § 56-1-1, if supported by a sufficiently detailed record, will not be subject to a writ of prohibition.

Annette J. Painter v. Patrick Devolta Peavy, No. 22206 (W. Va. November 18, 1994) (Cleckley, J.): 192 W.Va. 189, 451 S.E.2d 755:

In an appeal from the award of summary judgment, the Court held (1) a de novo standard of review applies to a trial court's award of summary judgment; (2) a trial court should not weigh the evidence on a motion for summary judgment, but rather determine whether there is a genuine issue of material fact for trial; and (3) summary judgment is appropriate where the record could not lead a rational trier of fact to find for the nonmoving party, such as where such party has failed to make a sufficient showing of an essential element of the case it has the burden to prove.

Roger Hickman, d/b/a Hickman's Rexall Pharmacy v. William H. Epstein, William D. Elliott, II, and John D. Muldoon, No. 22168 (W. Va. October 28, 1994) (Neely, J.): 192 W.Va. 42, 450 S.E.2d 406:

Reversing the award of a writ of mandamus involving a dispute between private parties, the Court held that except where public interests are involved, a writ of mandamus is not appropriate between private persons to enforce a purely private right, duty, or contract.

Renatha Williams and James Williams v. Melville Homer Cummings, Jr., M.D., No. 22078 (W. Va. June 16, 1994) (Brotherton, C.J.): 191 W.Va. 370, 445 S.E.2d 757:

Rejecting plaintiffs' attempt to bring a malpractice action in Putnam County because the defendant's son is a circuit judge in Cabell County, the Court held that W. Va. Code § 56-1-1(a)(7), which provides that venue may be obtained in an adjoining county where a judge in the county of venue is disqualified, has been superceded by Trial Court Rule XVII, which provides for the temporary assignment of circuit judges due to a disqualification.

Andrew P. Dzinglski v. Weirton Steel Corporation, No. 21888 (W. Va. May 26, 1994) (Neely, J.): 191 W.Va. 278, 445 S.E.2d 219:

Reversing a $500,000 verdict on other grounds, the Court nevertheless held the cause of action was not barred by the statute of limitations in light of the provisions of R. Civ. P. 15 regarding the relation back of amendments, holding that unless the proposed amendment creates an entirely new cause of action based on facts different from those in the original complaint, the amended pleading will relate back for statute of limitations purposes.

Robert L. Godbey v. William Foy Lanham, No. 21778 (W. Va. May 20, 1994) (Miller, J.): 191 W.Va. 233, 445 S.E.2d 174:

Reversing the award of default judgment when the defendant failed to appear for a pretrial conference, the Court held that where a defendant has answered plaintiff's complaint, a default judgment may not be entered unless the defendant has been served with written notice of the request for default judgment at least three days prior to the hearing on such motion.

Johnny C. Abbott, et al. v. Owens-Corning Fiberglas Corporation, et al., No. 21757 (W. Va. April 22, 1994) (McHugh, J.): 191 W.Va. 198, 444 S.E.2d 285:

Reversing the dismissal of over one thousand asbestos plaintiffs who are nonresidents suing corporations which are also nonresidents, the Court held (1) application of the doctrine of forum non conveniens depends on the circumstances of each case and, although one of the defendants is a resident of the forum state, such circumstance is alone insufficient to support the exercise of personal jurisdiction over nonresident defendants; (2) when the doctrine of forum non conveniens is raised, the trial court must develop a sufficient record to support its acceptance or rejection of the doctrine; and (3) whether personal jurisdiction exists over a nonresident defendant depends upon whether the defendant's alleged conduct satisfies the requirements of our long-arm statutes, W. Va. Code §§ 31-1-15 and 56-3-33, and whether, assuming such conduct does satisfy the long-arm statutes, the nonresident defendant's contacts with West Virginia are sufficient to satisfy federal due process requirements.

State of West Virginia ex rel. Harold B. Wolfe v. Honorable Kendrick King, Judge of the Circuit Court of McDowell County, No. 22049 (W. Va. April 20, 1994) (Brotherton, C.J.): 191 W.Va. 142, 443 S.E.2d 823:

Overturning a local rule prohibiting ex-felons from serving process, the Court held that a convicted felon who has completed the punishment and paid all fines set by judgment of the court is considered to be a "credible person" for purposes of service of process pursuant to R. Civ. P. 4(c).

State of West Virginia ex rel. CSR Limited v. Honorable A. Andrew MacQueen, III, etc., et al., No. 21994 (W. Va. February 17, 1994) (Neely, J.): 190 W.Va 695, 441 S.E.2d 658:

Denying a writ of prohibition to an Australian asbestos mining company seeking the dismissal on personal jurisdiction grounds, the Court held that in determining whether West Virginia courts have jurisdiction under the stream of commerce theory, the rule in West Virginia will always be congruent with the most expansive interpretation of United States Supreme Court precedent.

State of West Virginia ex rel. Appalachian Power Company, et al. v. Honorable Lyne Ranson, Judge of the Circuit Court of Kanawha County, et al., No. 21882 (W. Va. December 14, 1993) (McHugh, J.): 190 W.Va. 429, 438 S.E.2d 609:

Where trial court consolidated three Mandolidis cases arising from three separate accidents, the Court granted a writ of prohibition as to one of the actions, holding that a trial court should consider the following factors when ruling on a motion to consolidate: (1) whether the risk of prejuduce and confusion outweigh the considerations of judicial economy; (2) the burden on the parties, witnesses, and available judicial resources posed by multiple proceedings; (3) the length of time required to conclude multiple proceedings as opposed to a single proceeding; and (4) the relative expense of the alternatives. The Court further held that a judge's order on a motion to consolidate should set forth sufficient grounds for purposes of appellate review.

James E. Marion, et al. v. Sabra Tours International, Inc., a Maryland corporation; Isaac Neger; and On Your Way Travel, Inc., a West Virginia corporation, No. 21612 (W. Va. November 23, 1993) (Neely, J.): 190 W.Va. 250, 438 S.E.2d 42:

Reversing the dismissal of an action against tour operators following a unilateral change of accommodations, the Court held (1) where a plaintiff inadvertently fails to post the nonresident bond required by W. Va. Code § 56-3-33, the proper sanction is not dismissal, but to require that the bond be posted; (2) a sanction should be proportionate to the procedural defect for which the sanction is imposed; and (3) the conducting of an interstate travel business is sufficient to warrant personal jurisdiction in the state of residence of any customer.

Norfolk Southern Railway Company v. Honorable Elliott E. Maynard, Judge of the Circuit Court of Mingo County, and Junior Garrett, No. 21811 (W. Va. October 28, 1993) (Neely, J.): 190 W.Va. 113, 437 S.E.2d 277:

Requiring a more thorough analysis of whether personal jurisdiction was proper over a subsidiary which allegedly had no contacts with West Virginia, the Court held that (1) a parent-subsidiary relationship between two corporations, with only one doing business in West Virginia, without more, is insufficient to establish personal jurisdiction; (2) if a parent and subsidiary operate as one entity, their corporate structure will not prevent the assertion of personal jurisdiction; (3) the extent of control exercised determines whether a subsidiary is subject to personal jurisdiction due the activities of the parent in West Virginia; and (4) where a parent-subsidiary relationship exists between corporations, either may be the agent of the other for purposes of service of process depending upon the parent's control of the subsidiary.

Sylvia Hill, by her committee, Donald Hill and Donald Hill, Committee for Sylvia Hill v. Showa Denko, K.K., a Japanese corporation, et al., No. 20904 (W. Va. December 17, 1992) (Brotherton, J.): 188 W.Va. 654, 425 S.E.2d 609:

In an L-tryptophan case against its Japanese manufacturer, the Court reversed the trial court's dismissal for lack of personal jurisdiction, holding that personal jurisdiction "premised on the placement of a product into the stream of commerce is consistent with the Due Process Clause" and can be exercised without the need to show additional conduct by the defendant aimed at the forum state."

State Farm Mutual Automobile Insurance Company v. Honorable Booker T. Stephens, Judge of the Circuit Court of McDowell County, Donald Ray Perkins, and Sheila D. Perkins, No. 21368 (W. Va. December 16, 1992) (Miller, J.): 188 W.Va. 622, 425 S.E.2d 577:

Where defendant claimed that compliance with the trial court's discovery order would cost $40 million, the Court reversed and directed more restrictive discovery, holding that (1) a writ of prohibition may issue to control a trial court's substantial abuse of discretion relating to discovery; (2) a trial court may limit discovery under R. Civ. P. 26(B)(1)(iii) if it is unduly burdensome or expensive, taking into consideration the amount in controversy, the parties' resources, and the importance of the issues at stake; (2) where a request is made to limit discovery under R. Civ. P. 26(B)(1)(iii), the trial court should (a) weigh the requesting party's need for the information against the burden on the opposing party; (b) require the opposing party to demonstrate the burdensomeness of the request unless it is oppressive on its face; and (c) consider the relevancy and materiality of the information sought; and (3) discovery is not limited to only admissible evidence, but to information reasonably calculated to lead to the discovery of admissible evidence. On issues of the propriety of discovery sanctions, the Court held (1) contempt is a permissible sanction for failure to obey a discovery order under R. Civ. P. 37(b)(2)(D), except an order to submit to a physical or mental examination; (2) a per diem penalty is a permissible discovery sanction where it is set prospectively from the date of the contempt order as a means of insuring compliance with the discovery order; and (3) in addition to other discovery sanctions, a trial court may require, pursuant to R. Civ. P. 37(b)(2)(D), either the offending party or the party's attorney or both to pay the moving party's reasonable expenses, including attorney fees, unless the violation was substantially justified or such award would be unjust.

William David Lieving, Executor of the Last Will and Testament of Roberta LaVaughn Lieving, and William David Lieving, Individually v. Thelma E. Hadley; Union Bank of Tyler County, a corporation; and First National Bank of St. Mary's, N.A., No. 20738 (W. Va. October 22, 1992) (Neely, J.): 188 W.Va. 197, 423 S.E.2d 600:

Clarifying a often uncertain area of post-verdict practice and procedure, the Court held (1) a motion to amend or alter judgment, even though incorrectly named a motion to "reconsider," "vacate," "set aside," or "reargue," is a proper R. Civ. P. 59(e) motion if it is filed and served within ten days of entry of judgment; (2) henceforth, motions to "reconsider," "vacate," "set aside," or "reargue" should be properly styled as Rule 59(e) motions to alter or amend judgment; and (3) a motion, whatever denominated, which is not filed and served within ten days of the entry of judgment is a R. Civ. P. 60(b) motion and does not toll the running of the appeal period.

John D. Stump & Associates, Inc., and John D. Stump v. Cunningham Memorial Park, Inc., Smith Company, William E. Smith, D. Ray Smith, and William E. Rowe, No. 20208 (W. Va. May 29, 1992) (Miller, J.): 187 W.Va. 438, 419 S.E.2d 699:

Reversing a judgment on an alleged breach of contract involving the sale of a cemetery, the Court held (1) a right of first refusal does not allow its holder to compel an unwilling owner to sell, it only requires the owner to offer the property first to the holder when he or she decides to sell; (2) prior to selling to a third party, the owner must give written notice to the holder of a right of first refusal of the third party's offer and the owner's intention to accept the offer; (3) once written notice of intention to sell to a third party is given, the holder of a right of first refusal must advise the owner that the holder is willing to purchase on the same terms or the holder loses the right; (4) acceptance of the terms negotiated by the owner with a third party by the holder of a right of first refusal must be unequivocal and must not vary from those terms; and (5) if there is a question about the terms negotiated with a third party, the holder of a right of first refusal has the burden of seeking clarification.

TXO Production Corp., a Delaware corporation licensed to do business in West Virginia v. Alliance Resources Corp., etc., et al., No. 20281 (W. Va. May 14, 1992) (Neely, J.): 187 W.Va. 457, 419 S.E.2d 870:

Affirming a verdict of $19,000 in compensatory damages and $10 million in punitive damages in a slander of title case, the Court held that the elements of slander of title are (1) publication; (2) false statement; (3) derogatory to plaintiff's title; (4) with malice; (5) causing special damages; and, (6) diminished property value in the eyes of third parties. On two unrelated issues, the Court held that (1) a tenant is estopped from asserting lack of title in his or her landlord and (2) attorney fees incurred in an action to remove spurious clouds from a title qualify as special damages for purposes of one of the elements for a successful slander of title action.

State ex rel. Teresa Fearnow Shroades v. Honorable Patrick G. Henry, Judge of the Circuit Court of Berkeley County, No. 21167 (W. Va. July 22, 1992) (Neely, J.): 187 W.Va. 723, 421 S.E.2d 264:

Reversing an order which denied a discovery request for certain hospital records in a medical malpractice case, the Court held that (1) under W. Va. Code § 30-3C-1, et seq., governing medical peer review organizations, the determination of what materials are privileged is a factual question with the party asserting the privilege having the burden of proof; (2) W. Va. Code § 30-3C-3, which protects "records and proceedings of a review organization," does not extend to anything considered by a review organization which is "otherwise available from original sources;" and (3) trial courts should conduct an in camera inspection of documents sought to be protected under the medical peer review organization statute.

State of West Virginia ex rel. Eric V. Johnson and Sandra J. Johnson v. Honorable Callie Tsapis, Judge of the Circuit Court of Brooke County; Hitachi, Ltd., a foreign corporation; and Wheeling-Nisshin, Inc., a corporation, No. 21008 (W. Va. June 1, 1992) (Workman, J.): 187 W.Va. 337, 419 S.E.2d 1:

Affirming a protective order in a product liability case, which was obtained to protect certain trade secrets of a defendant, the Court adopted the following six-factor test for determining the existence of "good cause" under R. Civ. P. 26(c) (7): (1) the extent to which the information is known outside the defendant's business; (2) the extent to which it is known by employees and others involved in the defendant's business; (3) the extent of the measures taken by the defendant to protect the secrecy of the information; (4) the value of the information to the defendant and its competitors; (5) the amount of money or effort spent by the defendant to develop the information; and (6) the degree of effort required for acquisition or duplication of the information by others.

Marian Hanlon, as Administratrix of the Estate of Ronald L. Hanlon v. Joy Manufacturing Company, a corporation, et al., No. 20673 (W. Va. May 28, 1992) (Neely, J.): 187 W.Va. 280, 418 S.E.2d 594:

Where wrongful death actions were filed in Monongalia County and property damage actions were later filed in Tucker County, the scene of the accident, the Court held mandatory the language in R. Civ. P. 42(b), "When two or more actions arising out of the same transaction or occurrence are pending before different courts . . . the court in which the first such action was commenced shall order all the actions transferred to it or any other court in which any such action is pending."

Mary E. White v. Everett Berryman and the West Virginia Department of Transportation, Division of Highways, a West Virginia governmental entity, No. 20088 (W. Va. May 15, 1992) (Brotherton, J.): 187 W.Va. 323, 418 S.E.2d 917:

Setting aside a $500,000 default judgment against the Department of Highways where process was served on a DOH secretary, but affirming it against its employee who was served personally, the Court held (1) under W. Va. Code § 31-1-15 and W. Va. R. Civ. P. 4(d) (6) (D), the Secretary of State is the authorized attorney-in-fact to accept service of process on state agencies; (2) service of process on a secretarial employee of a governmental entity is insufficient to constitute proper service absent a clear showing that such employee had been delegated by the entity to accept process; and (3) an attorney's negligence will not serve as basis for setting aside a default judgment on the grounds of "excusable neglect."

David Paul Davis v. Joseph Sheppe, D.D.S., No. 20166 (W. Va. April 22, 1992) (Miller, J.): 187 W.Va. 194, 417 S.E.2d 113:

Reversing dismissal of a case after counsel failed to appear for trial, the Court held that a trial court's authority to dismiss a case for failure to appear at trial is governed by Rule 41(b), and a Rule 60(b) motion is the appropriate remedy to challenge a Rule 41(b) dismissal.

Germaine Mosley v. City of Parkersburg and Board of Trustees of Camden-Clark Memorial Hospital, No. 19793 (W. Va. June 27, 1991) (Brotherton, J.): 185 W.Va. 278, 406 S.E.2d 709:

Reversing the dismissal of an action for failure of the plaintiff to file a motion for substitution of parties within 90 days following the filing of a suggestion of death under R. Civ. P. 25 (a) (1), the Court held that, absent a showing of bad faith or undue prejudice, motions for extension of time in such circumstances should be liberally granted.

Carol A. Lozinski v. John M. Lozinski, Jr., No. 19623 (W. Va. July 17, 1991) (Workman, J.): 185 W.Va. 558, 408 S.E.2d 310:

Where, for purposes of litigating support and property issues, a West Virginia wife sought personal jurisdiction over her husband who had relocated to Georgia, the Court held that failure to provide support to one's children constitutes a tortious act under our long-arm statute, W. Va. Code § 56-3-33, such that personal jurisdiction may be obtained over the obligor/tortfeasor, provided that the other statutory requirements have been met.

Willetta Dawn Christian v. Rodney Lee Sizemore, Hester Sizemore, Federal Kemper Insurance Company, and John Doe, No. 19897 (W. Va. July 11, 1991) (Workman, J.): 185 W.Va. 409, 407 S.E.2d 715:

Reversing a trial court decision that procurement of a default judgment by an insurance company against its insured on the issue of coverage precluded a declaratory judgment action by a third-party allegedly injured by the insured's negligence, the Court held that because a default judgment obtained by an insurer against its insured on the issue of coverage is not a judgment on the merits, an injured plaintiff is not precluded from relitigating the issue of coverage in a declaratory judgment action against the insurer.

Thomas Bronz v. St. Jude's Hospital Clinic, a corporation; Dover Elevator Company, a corporation; and Sheppard Warner Elevator Company, Inc., a corporation, No. 19545 (W. Va. February 25, 1991) (Brotherton, J.): 184 W.Va. 594, 402 S.E.2d 263:

Affirming an award of summary judgment to an elevator maintenance company against whom the plaintiff, who was injured when he fell down a shaft when the elevator did not arrive at its appointed floor, asserted the doctrine of res ipsa loquitur, the Court held that a party cannot successfully defend a motion for summary judgment by invocation of the doctrine of res ipsa loquitur alone, but must establish, through affidavits, interrogatories, depositions, or otherwise, the existence of a genuine issue of material fact, which the Court held the plaintiff in the instant case failed to do.

Gladys Y. Arnoldt, et al. v. Ashland Oil, Inc., No. 19988 (W. Va. December 20, 1991) (Workman, J.): 186 W.Va. 394, 412 S.E.2d 795:

Where plaintiffs' counsel informed the jury that the trial judge had rejected defendant's motion for directed verdict, the Court reversed, holding that it is improper for counsel to inform a jury that the trial judge has denied a motion for directed verdict.

State of West Virginia ex rel. J. Edward Hamrick, III, Director, West Virginia Division of Natural Resources v. LCS Services, Inc., a West Virginia corporation; Chambers of West Virginia, Inc., a West Virginia corporation; and Chambers Development Company, Inc., a Delaware corporation, No. 20127 (W. Va. December 19, 1991) (McHugh, J.): 186 W.Va. 702, 414 S.E.2d 620:

Reversing a judgment giving res judicata effect to a federal district court decision, the Court held that where the legislature enacted new landfill legislation subsequent to a federal district court decision interpreting the previous statute, the effect of this subsequent legislation had not been litigated before the federal district court, and the circuit court should not have applied the doctrines of res judicata or collateral estoppel.

Paul Huffman v. Appalachian Power Company, No. 20118 (W. Va. December 19, 1991) (Miller, C.J.): 187 W.Va. 1, 415 S.E.2d 145:

Reversing a $1.17 million verdict against a utility company after an 18-year-old male climbed a 40-foot high-voltage electrical tower where he was electrified and fell crashing to the earth, and directing entry of judgment for the utility company, the Court held that in order to prevail upon a motion for judgment notwithstanding the verdict under R. Civ. P. 50(b), a defendant must have (1) moved for a directed verdict at the close of plaintiff's case and have asserted insufficiency of the evidence to establish a prima facie case; (2) moved for a directed verdict at the close of all the evidence and have asserted insufficiency of the evidence to establish a prima facie case; and (3) filed such motion within 10 days from the date of the entry of the judgment order on the jury verdict. Moveover, the Court held that although the evidence should be considered in a light most favorable to the plaintiff upon a motion for judgment notwithstanding the verdict, if the evidence simply fails to establish a prima facie case, the court should grant the motion.

Phyllis Baber, Administratrix of the Estate of Richard Marshall Walker and Raymond Walker v. Nicholas Fortner, by Thomas Poe, Guardian ad Litem v. State Farm Mutual Automobile Insurance Company, No. 20138 (W. Va. December 19, 1991) (Brotherton, J.): 186 W.Va. 413, 412 S.E.2d 814:

Where defendant, convicted of voluntary manslaughter, was subsequently sued in a civil action, the Court held that the adjudication of a killing which results in a voluntary manslaughter conviction conclusively establishes the intentional nature of the act for purposes of any subsequent civil proceeding.

Brenda Michelle Cook and Linda D. Pill v. Don Stansell and Martinsburg Partners, etc., et al. v. JoAnn Gall, No. 20139 (W. Va. November 22, 1991) (Brotherton, J.): 186 W.Va. 189, 411 S.E.2d 844:

Where defendant sought to implead a settling nonparty, the Court held that because a nonparty who has made a good faith settlement is relieved of liability for contribution, a defendant cannot implead the settling nonparty as long as the settlement was made in good faith and the amount disclosed to the trial court or verdict reduction.

Carroll R. Howe, as Administrator of the Estate of Florence J. Howe v. James Thompson, M.D., No. 20101 (W. Va. November 5, 1991) (Brotherton, J.): 186 W.Va. 214, 412 S.E 2d 212:

Where the jury returned a verdict assessing less than fifty percent of the negligence to the defendant, but awarding clearly inadequate damages, the Court found such error harmless, holding that where a jury returns a partial verdict which does not assess damages, but clearly indicates that the plaintiff's fault equals or exceeds fifty percent, it is unnecessary for the trial court to require the jury to resume deliberations on the issue of damages.

Jacqueline Pries v. Honorable Clarence L. Watt, Judge of the Circuit Court of Putnam County, and John L. Pries, No. 20245 (W. Va. October 17, 1991) (Miller, C.J.): 186 W.Va. 49, 410 S.E.2d 285:

Where husband sought modification of a New Jersey decree though wife's only contact with West Virginia was filing of husband's petition, the Court held that in order to obtain personal jurisdiction over a nonresident defendant, there must be sufficient minimum contacts between the defendant and the forum state so that it will be fair and just to require a defense to be mounted in the forum state, with one essential inquiry being whether the defendant has purposefully acted to obtain benefits or privileges in the forum state.

Doyle Jones v. Jacqueline Jones and Robey J. Knight, Committee for Jacqueline Jones, incompetent, No. 19266 (W. Va. December 14, 1990) (Miller, J.): 184 W.Va. 297, 400 S.E.2d 305:

Where husband amended divorce complaint to allege a new ground for relief after Court's adoption of the doctrine of equitable distribution in LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983), and then wife filed an amended answer requesting equitable distribution, the Court determined that the wife was entitled to the benefits of the LaRue decision, holding that although a supplemental pleading relates back to the original pleading for statute of limitations purposes when it does not set forth an entirely new cause of action, a supplemental pleading will not relate back when it asserts an entirely new cause of action based on facts different from those in the original pleading.

Norfolk and Western Railway Company, a corporation v. Honorable Callie Tsapis, Judge of the Circuit Court of Brooke County, No. 19788 (W. Va. December 6, 1990) (Miller, J.): 184 W.Va. 231, 400 S.E.2d 239:

Overruling the case of Gardner v. Norfolk & Western Railway Co., 179 W.Va. 724, 372 S.E.2d 786 (1988), the Court held that the doctrine of forum non conveniens, which permits a court to decline to exercise concurrent jurisdiction with another tribunal in order to promote convenience of witnesses and the ends of justice, is available to our courts of record where the forum has only a slight nexus to the subject matter and where the other forum with jurisdiction would be more convenient, less expensive, and less time-consuming. The Court further held that if there is a bar to the exercise of jurisdiction in another forum, such as a statute of limitations, forum non conveniens may not be invoked unless the defendants agree not to raise the bar in the other jurisdiction.

William Sattler v. Ralph Bailey, in his former capacity as a member of the West Virginia Department of Public Safety, etc., et al., No. 19249 (W. Va. November 30, 1990) (McHugh, J.): 184 W.Va. 212, 400 S.E.2d 220:

Reversing a decision that dismissal of a federal civil rights action as time-barred was res judicata for purposes of a subsequent state tort action, the Court held that where a federal claim is dismissed prior to trial such that the federal court would have declined to exercise its pendent jurisdiction over related state claims, a subsequent action in state court on state claims is not barred by the doctrine of res judicata.

Debra Lyn Glover, individually, and Debra Lyn Glover, next friend of Darren Glover, a minor child v. Honorable Steven D. Narick, Judge of the Circuit Court of Wetzel County, James M. Simpkins, and Dolly J. Beagle, No. 19717 (W. Va. November 13, 1990) (Miller, J.): 184 W.Va. 381, 400 S.E.2d 816:

In reversing the compulsory joinder of a minor child who was a passenger in vehicle involved in an accident, the Court held that (1) a personal injury to a minor child gives rise to separate causes of action by the child and by the child's parent; (2) judgment against a child's parent does not preclude a subsequent action by the child; (3) R. Civ. P. 19(a) (2) (ii) requires joinder of a nonparty where failure to join would expose the defendant to multiple recovery on the same claim, not where failure to join would expose the defendant to multiple litigation and, potentially, inconsistent verdicts; (4) R. Civ. P. 19(a) (1) requires joinder where complete relief cannot be accorded among those already parties in the absence of the person whose joinder is sought; and, (5) unless other criteria of R. Civ. P. 19(a) are met, judicial economy is alone insufficient to require compulsory joinder.

Franklyn Gonzalez Perez, Victor Gonzalez Perez, and Horacia Perez v. Romney Orchards, Inc. and Angel Sotomayor Pagan, Luis Otero Herrara, Jose M. Hernandez, Alfredo Acevedo, Jorge L. Amonte Alers, Anicasio Heredia Serrano, and Angel L. Medina v. Ewers Orchards & Randolph L. Ewers and Jose M. Bonilla, Esteban Velez Roca, Antonio Gonzalez Aleman, Angel Luis Maldonado Vega, Redin A. Rivera and Carmello Baez v. Ewers Orchards and Luis Rasado v. Ewers Orchards and Randolph L. Ewers, No. 19664 (W. Va. October 24, 1990) (Miller, J.): 184 W.Va. 20, 399 S.E.2d 50:

Where several migrant workers filed suit in West Virginia to enforce Puerto Rican judgments obtained six to eight years earlier against West Virginia orchard growers, the Court held that W. Va. Code § 55-2-13 provides a ten-year period for filing suit on a foreign judgment unless sooner barred under the law of the judgment jurisdiction, which, in the case of Puerto Rico, is fifteen years.

Norfolk and Western Railroad Company, a Virginia corporation v. Janie Severt Sharp, Janie Severt, Virginia Severt Lester, Agnes Severt Black, Elsie Severt Church, and Tom Church, etc., et al., No. 19358 (W. Va. July 18, 1990) (Miller, J.): 183 W.Va. 283, 395 S.E.2d 527:

Where the appeal by a group of landowners from a condemnation commissioners' report had been dismissed as untimely because it was not filed with the circuit clerk until 13 days after such report was filed, the Court held that because the circuit clerk failed to notify the landowners pursuant to W. Va. Code § 54-2-10 that the commissioners' report had been entered, the landowners' appeal was not timely.

Everett W. Ray, Lennie C. Ray, Ralph C. Morris and Kathryn H. Morris v. Honorable John Hey, Judge of the Circuit Court of Kanawha County; One Valley Bank Corporation, N.A.; One Valley Bank of Summersville; and F.B. Tallamy, Trustee Under Deed of Trust Made to Everett W. Ray and Lennie C. Ray, No. 19613 (W. Va. July 12, 1990) (Neely, C.J.): 183 W.Va. 521, 396 S.E.2d 702:

Rejecting a challenge to a trial court's dismissal for improper venue of an action to enjoin sale of land located in another county, the Court held that only the circuit court of the county where the land is located has jurisdiction under W. Va. Code § 53-5-4 to consider a case directly affecting the land or its title.

Dionisio E. Policarpio, M.D. v. Hon. Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, and Wallace G. Hayner, by his daughter and next friend, Phyllis H. Dean, No. 19458 (W. Va. July 27, 1990) (Miller, J.): 183 W.Va. 258, 395 S.E.2d 502:

In determining that it was improper for a deponent to unilaterally terminate a deposition, the Court held that the appropriate procedure is for a deponent who believes a deposition is being conducted improperly to suspend the deposition under R.C.P. 30(d) and promptly apply to the court for an order to terminate or limit scope. Conversely, where a deponent refuses to answer questions at a deposition, the proper procedure is for the party taking the deposition to move to compel under R.C.P. 37(a) (1).

The Lowndes Bank v. MLM Corporation, et al., No. 19186 (W. Va. June 26, 1990) (Neely, C.J.): 183 W.Va. 339, 395 S.E.2d 762:

In rejecting an IRS argument that it should have been dismissed as a party due to the plaintiff's failure to serve the Attorney General in accordance with 26 U.S.C. § 2410(b), the Court held that when the United States makes a general appearance in state court, technical defects relating to service of process will not result in dismissal unless prejudice from such improper service is shown.

Delbert Nutter, Dana Nutter, and Edna Nutter, Committee and next friend of Linda Mullins, and Thomas Mullins v. Honorable Elliott E. Maynard, Judge of the Circuit Court of Mingo County; Wyeth Laboratories, and Wyeth Laboratories, Inc.; Nicholas County Health Department; Nicholas County Family Planning Clinic; William Lester, M.D.; and Robert E. Fleer, M.D., No. 19460 (W. Va. June 21, 1990) (Workman, J.): 183 W.Va. 247, 395 S.E.2d 491:

In reversing an order that plaintiffs provide defendants with written reports from each expert witness expected to testify at trial, the Court held that although a trial court does have discretion to compel "discovery by other means" under R. Civ. P. 26(b) (4) (A) (1) when a party complains regarding the answers to interrogatories, the proper procedure is for such party to first file a motion to compel more complete answers under R. Civ. P. 37(a) (2).

Lewis Michael Maxwell and Sherry Maxwell v. Eastern Associated Coal Corporation, Inc., a foreign corporation; and The Baltimore & Ohio Railway Company, Inc., a forp align ="center">< May 17, 1990) (Brotherton, J.): 183 W.Va. 70, 394 S.E.2d 54: