IN RE: DESTINY G.A., Nos. 30315 (Per Curiam)(June 19, 2002). Reversing an order entered in the Circuit Court of Wood County awarding child support, allocating custody, and granting decretal judgment. Remanding for reconsideration, inter alia, of ability to pay under Sinclair, Carpenter, and Gibson.

IN RE: TESSLA N.M., et al., No. 29964 (Maynard, J.)(June 14, 2002).
Affirming an order of the Circuit Court of Wayne County that denied a motion to set aside a voluntary termination of parental rights. Rejecting arguments that the oral relinquishment was invalid because it was not verified in writing and was made under duress.

IN RE: JAMES G., et al., No. 30039 (McGraw, J.)(June 14, 2002).
Reversing an order entered in the Circuit Court of Raleigh County that refused to accept a mother's voluntary relinquishment of parental rights where DHHR did not agree. Holding, inter alia, that the circuit court is not obliged to adopt any position advocated by DHHR in this context.

IN RE: DESTINY ASIA H., Nos. 30511 and 30512 (Per Curiam)(Davis, C.J., concurring)(Starcher, J., dissenting)(Albright, J., concurring in part and dissenting in part)(June 17, 2002). Reversing an order entered in the Circuit Court of Cabell County returning custody of a child to her natural mother. Holding that the circuit court erred in failing to hold that the child was an abused and neglected child within the meaning of the statute, and reversing the award of custody to the natural mother.

IN RE: DANIEL D. AND SAMANTHA D., No. 29965 (Albright, J.)(Davis, C.J. and Maynard, J., dissenting)(February 22, 2002). Reversing a termination of parental rights entered by the Circuit Court of Marion County, and remanding with directions. Setting forth principles to govern the situation in which an individual exercises a Fifth Amendment right to silence in the underlying abuse and neglect proceedings in order to protect himself from incrimination in a tandem pending criminal case. Modifying the holding of SER Wright v. Stucky, 205 W.Va. 171, 517 S.E.2d 36 (1999), to exclude court-ordered examinations in abuse and neglect proceedings.

SER DUNLAP v. BERGER, et al., No. 30035 (Starcher, J.)(June 14, 2002).
Granting a writ of prohibition to prevent enforcement of an order entered in the Circuit Court of Kanawha County that required a consumer, who filed an action against a retail jewelry store and related parties, to proceed to arbitration due to certain language in the form purchase and financing agreement. The consumer alleged a systematic, deceptive, and illegal "loan packing" scheme whereby unrequested insurance charges were routinely added to the cost of consumer purchases from the retail jeweler. Holding, inter alia, that the federal arbitration act does not prevent a state court from examining the unconscionability of exculpatory provisions in a contract of adhesion, where those provisions, if applied, would substantially limit a person from enforcing and vindicating rights and protections or from seeking and obtaining statutory or common-law relief and remedies that are afforded by or arise under state law that exists for the benefit and protection of the public.

SER OGDEN NEWSPAPERS, Inc., etc. v. WILKES, et al., No. 30248 (Per Curiam)(Davis, C.J. and Maynard, J., dissenting)(Starcher, J., concurring)(June 7, 2002). Denying a writ of prohibition sought to prohibit an order of the Circuit Court of Berkeley County that would permit plaintiff's counsel to represent a party with interests adverse to those of Ogden in matters related to the work the attorneys had done for Ogden while they were associates at the law firm of Steptoe & Johnson. Holding that mandatory disqualification pursuant to Rule 1.9 was not warranted, in view of the fact that "we do not find a substantial relationship between the two representations which would trigger the presumption that relevant confidential information was disclosed and disqualification is therefore warranted."

SER McGRAW v. BURTON, No. 30094 (Starcher, J.)(Davis, C.J., disqualified)(Albright, J., concurring)(Kaufman, Judge, sitting by temporary assignment, concurring)(June 12, 2002). Granting moulded mandamus relief to the Attorney General in action alleging that executive branch agencies are violating the WV Constitution by using lawyers who are not employed or approved by the Attorney General. Holding that the use and employment of such lawyers is not barred in all cases; however, also holding that the Office of the Attorney General may not be stripped of its inherent core functions.

LANG v. DERR, No. 29959 (Per Curiam)(May 3, 2002).  Reversing an order entered in the Circuit Court of Jefferson County that declared valid and enforceable a contract between the appellant and her parent's caregivers. In the contract, signed a week after her father's death, the appellant "agreed to accept $100 for assets which were worth some 600 to 900 times that amount." In light of the gross disparity in the values to be exchanged, the unequal bargaining positions of the parties, and the record's failure to establish that the appellant entered into the contract with a full understanding of its consequences, the Court held that the contract was unconscionable.

TRAFALGAR HOUSE CONSTRUCTION, INC., et al. v. ZMM, Inc., et al., No. 30246 (Per Curiam)(June 21, 2002). Reversing summary judgment entered in favor of defendants below in the Circuit Court of Kanawha County, on statute of limitations grounds, in a dispute between architect, geotechnical engineer, general contractor and subcontractor over alleged errors in the bid documents primarily regarding the amounts of dirt and rock needed to complete site preparation. Holding that material questions of fact remains as to: (1) when the appellant contractors first learned that the appellees allegedly fraudulently or negligently misrepresented their actual knowledge of the subsurface conditions; and (2) whether appellants reasonably relied upon the allegedly fraudulent representations.

STATE v. COPEN, No. 29994 (Per Curiam)(Starcher, J. and Albright, J., dissenting)(June 26, 2002). Affirming a conviction for first degree murder, without mercy, obtained in the Circuit Court of Kanawha County. Rejecting arguments that the trial court erred in admitting gruesome pictures, in failing to declare a mistrial due to improper remarks by the State during closing argument, and that the cumulative effect of various ruling created an oppressive in-court atmosphere that deprived him of a fair and impartial trial.

STATE v. GRIFFIN, No. 30433 (Per Curiam)(Davis, C.J. and Maynard, J., dissenting)(Starcher, J., concurring)(June 26, 2002). Reversing conviction for attempted burglary obtained in the Circuit Court of Kanawha County. Holding that the trial court erred in failing to excuse, for cause upon motion by the defendant, a potential juror who worked as a criminal grand jury coordinator for the US Attorney's office. Further holding that the trial court erred in attempting to rehabilitate the prospective juror's bias, in light of syllabus point 5 of O'Dell v. Miller.

STATE v. MILLS, No. 30031 (Per Curiam)(McGraw, J., disqualified)(Alsop, Judge, by temporary assignment)(Albright, J., concurring)(June 26, 2002). Reversing a conviction for first degree murder, without mercy, obtained in the Circuit Court of Raleigh County. Holding that improper testimony and comment on defendant's silence warrants new trial.

STATE v. McLEAD, No. 30245 (Per Curiam)(Starcher, J. and Albright, J., concurring)(Maynard, J., concurring in part and dissenting in part)(June 26, 2002). Granting mixed relief from a conviction for third offense DUI and driving while revoked obtained in the Circuit Court of Monongalia County. Holding that the trial court erred in admitting the results of the defendant's blood test, because the defendant did not voluntarily consent to taking the test. Affirming conviction for driving while revoked.

STATE v. LEEP, No. 30018 (Davis, C.J.)(Starcher, J. and Albright, J., concurring in part and dissenting in part)(Maynard, J., concurring)(June 19, 2002). Reversing convictions for sexual offenses obtained after a jury trial in the Circuit Court of Wayne County. Finding no error regarding the trial court's admission of enzyme immunoassay (EIA) test results, but concluding that the trial judge's sua sponte comments regarding the reliability of those results constituted reversible error.

SER PORTER v. RECHT, et al., No. 30439 (Albright)(June 19, 2002). Granting a writ of prohibition to prevent the Circuit Court of Ohio County from proceeding to trial under an information charging the defendant with twenty separate counts of false swearing arising out of two affidavits he signed in connection with a medical malpractice suit.

STATE v. SCHERMERHORN, No. 30085 (Per Curiam)(June 14, 2002).
Reversing a conviction for third offense DUI obtained in the Circuit Court of Monongalia County. Holding that the circuit court erred in failing to strike a juror for cause.

STATE v. MARTISKO, No. 30044 (Per Curiam)(June 17, 2002). Granting mixed relief from an order entered in the Circuit Court of Ohio County affirming a magistrate court conviction for domestic battery. Holding that the magistrate court, and subsequently the circuit court, improperly denied the defendant the opportunity to impeach the victim/witness, and reversing the conviction. Affirming magistrate's decision to join the four offenses charged.

SER HOOSIER v. WATERS, et al., No. 30435 (Per Curiam)(June 12, 2002).
Granting a writ of prohibition to preclude enforcement of an order entered by the Circuit Court of Wood County. A defendant was indicted on two misdemeanors and one felony. Previously, the two misdemeanors had been filed in magistrate court and dismissed without prejudice prior to the indictment. Defendant filed a motion to sever the misdemeanor offenses and remand the charges to magistrate court, which the circuit court denied. Reiterating the recent holding in syllabus point 9 of SER Games-Neeley v. Sanders, that a defendant charged with an offense in magistrate court has a statutory right under W. Va. Code 50-5-7 to have those offenses tried in magistrate court.

BUTCHER v. MILLER, No. 30251 (Per Curiam)(Davis, C.J. and Maynard, J., dissenting)(Albright, J., concurring)(June 7, 2002). Reversing an order of the Circuit Court of Wetzel County that upheld an administrative revocation of appellant's driver's license for one year for failure to submit to a designated chemical breath test to determine whether he was driving while impaired. Finding that appellant was improperly advised of the consequences of his refusal to take the chemical test (which was mandatory, rather than discretionary, revocation), and therefore restoring appellant's driver's license.

STATE v. SWIMS, No. 30099 (Davis, C.J.)(Maynard, J. dissenting)(Starcher, J., concurring)(June 7, 2002). Reversing an order of the Circuit Court of Boone County that denied a defendant's motion for new trial following convictions for conspiracy and aggravated robbery with 120 year sentence. Holding that circuit court erred in failing to redact certain language contained in a plea agreement introduced as evidence at trial, setting forth guidelines for testimonial and evidentiary uses of plea agreements, and remanding for new trial.

SER GAMES-NEELY v. SANDERS, et al., No. 30359 (Albright, J.)(May 24, 2002).
Denying a writ of prohibition sought by the State to prevent severance of misdemeanor charges previously joined with felony charges and remand of the misdemeanor charges for trial in magistrate court. Rejecting State's contention that the trial court's action violated the mandatory joinder requirement of W.Va.R.Crim.P. 8(a)(2). Holding that the statutory right to trial in magistrate court granted by WV Code 50-5-7 cannot be exercised if the misdemeanor trial in magistrate court would bar the felony trial in circuit court, based on constitutional double jeopardy principles, and that trial courts must weigh this balance when considering motions to sever.

STATE v. JOHNSTON, No. 30040 (Per Curiam)(May 24, 2002).
Reversing a conviction obtained in the Circuit Court of Harrison County on charges of fleeing a police officer and driving with a revoked license. Holding that the trial court erred in refusing to strike a juror, who articulated a prejudice against people who drink, for cause during jury selection.

STATE v. BOHON, No. 30014 (McGraw, J.)(Maynard, J., concurring)(May 8, 2002). Reversing an order of the Circuit Court of Monongalia County in an appeal from a conditional guilty plea to second degree murder with a sentence of 40 years. The Court agreed with the State's confession of error, under the confrontation clauses of the state and federal constitutions, that the trial court's in limine decision to allow prior testimony of an absent witness (who had been convicted for the same crime), to be read into the record without cross-examination, was erroneous. Further reversing the trial court's decision to admit confidential remarks made by the appellant to his wife, holding that the martial confidence privilege applies to the communication at issue, and setting forth guidelines for applying the privilege in future cases.

STATE v. BELL, No. 30022 (Albright, J.)(May 24, 2002). Reversing a conviction obtained in the Circuit Court of Jefferson County of the felony of wanton endangerment. Under the facts presented, the Court concluded that the trial court erred in failing to instruct the jury on the lesser offense of brandishing. Holding that the offense of brandishing under WV Code 61-7-11 is a lesser included offense of wanton endangerment under WV Code 61-7-12. Holding further that appellant's request for a jury instruction on the statutory right of a land manager to prohibit firearms on the premises appeared to be germane to the theory of defense, and should be considered by the trial court upon any retrial.

STATE v. SUZANA M. VETROMILE, No. 29703 (Per Curiam)(May 3, 2002).
Affirming a conviction for first degree murder and sentence of life without mercy obtained in the Circuit Court of Ohio County. Rejecting arguments: that the trial court erred in denying a motion for new trial; that the evidence was insufficient to support a conviction; and that the trial court erred in denying a motion for new trial due to possible juror bias, based on information arising after trial indicating that one of the jurors may have had inaccurate information regarding a collateral crime that was not presented at trial.

STATE v. ROBIN BARNHART, No. 29967 (Per Curiam)(April 8, 2002). Reversing a misdemeanor battery conviction obtained in the Circuit Court of Ohio County. Holding that the circuit court erred in failing to dismiss the indictment because a member of the grand jury was a police officer who played some role in the investigation of the crime for which the appellant was indicted. While not voting on the indictment, the officer nevertheless remained in the grand jury room during the prosecuting attorney's presentment and during the deliberations of the grand jury, thereby violating the appellant's right to have an indictment returned against her by a legally constituted and unbiased grand jury.

STATE v. CHESTER CHANZE, No. 29810 (Albright, J.)(Davis, C.J. and Maynard, J., dissenting)(Starcher, J., concurring)(April 5, 2002). Vacating a conviction for petit larceny obtained after a magistrate jury trial that had been affirmed by the Circuit Court of Marshall County. Holding that where the electronic record of a magistrate court jury trial is so defective as to prevent meaningful appellate review, and reconstruction of the record is not possible, a defendant is entitled to a new trial by jury in magistrate court.

STATE v. SHAWNA DAWN JAMES, No. 29990 (Per Curiam)(April 5, 2002).
Affirming a conviction for malicious assault obtained in the Circuit Court of Kanawha County. Rejecting argument that the trial court erred in giving a so-called "missing witness" instruction.

STATE v. LANCE ANTHONY TYLER, No. 29759 (Per Curiam)(Starcher, J. and Albright, J., dissenting)(Maynard, J., concurring)(March 15, 2002). Affirming a conviction for aggravated robbery and a thirty-year sentence imposed in the Circuit Court of Kanawha County. Rejecting argument that the sentence imposed was unconstitutionally disproportionate to the nature and character of the offense. Further concluding that excessive emphasis was not placed upon the victim impact statements or the sentencing recommendations of the victims or their families.

STATE v. McCLAIN, No. 29839 (Albright, J.)(February 22, 2002). Reversing a portion of a sentencing order entered in the Circuit Court of Kanawha County that refused to give appellant credit for time served in jail awaiting trial when imposing a six-month period of incarceration as a condition of probation. Holding that when a minimum or indeterminate sentence is involved, the maximum term of incarceration as a condition of probation is one-third of the express minimum or indeterminate sentence or six months, whichever is less; for all other types of statutory penalties, the maximum term of incarceration as a condition of probation is six months. Holding further that appellant was entitled to credit for time served in jail prior to conviction.

GAMES-NEELY v. REAL PROPERTY, etc., et al., No. 29999 (Albright, J.)(Maynard, J., dissenting)(Starcher, J., concurring)(February 22, 2002).
Reversing a default judgment order entered in the Circuit Court of Berkeley County in a civil forfeiture matter, where appellant filed an answer to the petition four days late. Holding, inter alia, that circuit courts have discretion to set aside default judgment in such cases pursuant to Rule 60(b), and that the State is obligated to make diligent efforts to serve of copy of the forfeiture petition on all parties having an ownership interest in the property.

SER GARDNER v. WV DIVISION OF CORRECTIONS, et al., No. 30038 (Davis, C.J.)(January 30, 2002). Granting a moulded writ of habeas corpus in a challenge to an order of the West Virginia Parole Board. Holding that principles of law developed in relation to plea agreements between the State and a criminal defendant apply with equal force to written conditional agreements entered between the West Virginia Parole Board and a parolee.

STATE v. RONALD ADAMS, No. 29960 (Per Curiam)(Starcher, J., concurring)(February 11, 2002). Affirming a conviction for aggravated robbery and sentence of 90 years imprisonment imposed by the Circuit Court of Putnam County. Rejecting appellant's contention that the sentence imposed was disproportionate to the crime upon which it was based.

COLLINS, et al. v. SOUTHWORTH, No. 30112 (Davis, C.J.)(June 7, 2002).
Answering a certified question from the United States District Court for the Southern District of West Virginia. Syllabus Point 2: "Prior to the filing of a prospective judicial proceeding, a party to a dispute is absolutely privileged to publish defamatory matter about a third person who is not a party to the dispute only when (1) the prospective judicial action is contemplated in good faith and is under serious consideration; (2) the defamatory statement is related to the prospective judicial proceeding; and (3) the defamatory matter is published only to persons with an interest in the prospective judicial proceeding."

BELCHER v. WAL-MART Inc., et al., No. 30000 (Per Curiam)(Starcher, J. and McGraw, J., dissenting)(April 8, 2002).  Affirming an entry of summary judgment in favor of Wal-Mart and its managers in a defamation and unlawful detention suit arising out of the retailer's actions following appellant's attempt to return a computer he had purchased two days earlier. Holding that appellant failed to satisfy two essential elements of a claim for defamation: existence of a defamatory statement and nonprivileged communication to a third party. Further holding that in the absence of evidence that Wal-Mart employees actually detained the appellant, or restrained his freedom of motion through force or actions which would provide a reasonable basis for a subjective belief that he was being detained, summary judgment on the illegal detention claim was properly granted.

LAMBERT v. GARTIN, et al. , No. 30106 (Per Curiam)(June 19, 2002). Reversing an order of the Circuit Court of Cabell County that dismissed a correctional officer's complaint that alleged he was entitled to additional compensation for performing duties regularly performed by a captain. Finding that appellant stated a claim upon which relief can be granted, remanding.

MEADOWS v. HOPKINS, No. 30252 (Davis, C.J.)(Starcher, J., dissenting)(June 14, 2002). Reversing an order of the Circuit Court of Nicholas County that ruled in favor of the sheriff, that the county deputy sheriffs civil service commission did not have authority to reinstate a deputy sheriff. Holding that the commission did have such authority.

BUTTS v. HIGHER ED. INTERIM GOVERNING BD./SHEPHERD COLLEGE, No. 30120 (Per Curiam)(Davis, C.J. and Maynard, J., dissenting)(June 17, 2002). Reversing an order entered by the Circuit Court of Jefferson County that upheld a reprimand issued against an associate professor. Holding that the reprimand was improperly issued and should be removed from the employee's record. The professor had refused to release student grades, believing that such release would have violated the school's privacy policy.

FRYE v. FUTURE INNS of AMERICA, Inc., et al., No. 30091 (Maynard, J.)(Starcher, J., dissenting)(May 31, 2002). Affirming an order entered in the Circuit Court of Kanawha County on review of a decision by the Human Rights Commission. Rejecting Commission's argument that respondents may be jointly and severally liable for incidental damages awarded. Holding that the limit of an award of incidental damages under Bishop Coal v. Salyers, 181 W.Va. 71, 380 SE2d 238 (1989) applies per case rather than per respondent.

BOSSIE v. BOONE COUNTY BOARD of EDUCATION, No. 30118 (Maynard, J.)(May 31, 2002). Answering certified question from the Circuit Court of Kanawha County. Holding that once a county board of education selects a qualified applicant to fill a vacancy for a properly noticed job and that selection is rescinded within the time period prescribed by W.Va. Code 18A-4-7a, if more than one applicant meets the qualifications, the board is legally bound to choose a successor from the original list of applicants.

BD. of ED. of WOOD COUNTY v. AIRHART, et al., No. 30103 (Albright, J.)(McGraw, J., concurring in part and dissenting in part)(April 5, 2002). Reversing an order entered in the Circuit Court of Wood County that reversed a Level IV grivance decision regarding whether employees were entitled to compensation under 240-day annula contracts or 261-day annual contracts. Holding that the 240-day contract employees are entitled to compensation and benefits under 261-day contract terms, but are not entitled to back pay or retroactive application of the Court's decision.

CROCK, et al. v. HARRISON COUNTY BOARD OF EDUCATION, No. 29988 (Per Curiam)(February 11, 2002). Reversing an order entered in the Circuit Court of Harrison County that affirmed an administrative order that approved of the issuance of new employment contracts with identical terms of employment but a reduced rate of salary. Holding that the Board's action in removing certain experience credits, in violation of the non-relegation clause of WV Code 18A-4-8(m), was improper, and remanding for restoration of experience credit and adjusted salary.

COOKMAN REALTY GROUP, INC. v. TAYLOR, CHIEF, OFFICE OF WATER RESOURCES, etc., No. 30116 (Per Curiam)(Starcher, J., and Albright, J., concurring)(June 19, 2002). Affirming an order of the Circuit Court of Grant County that precluded DEP from ordering a property owner to eliminate motor-oil contamination from its property absent evidence that current property owner was the originator of such pollution. Holding that the subject regulation clearly and unambiguously limits the agency to requiring remediation only from those who originate contamination that results in a threat to groundwater.

IN RE MARRIAGE/CHILDREN OF: BETTY L.W. v. WILLIAM E.W., No. 30189 (Per Curiam)(Maynard, J., dissenting)(June 7, 2002). Affirming an order of the Circuit Court of Taylor County that denied a petition to modify child support based upon new cellular evidence disproving paternity. In light of appellant's admission of paternity and existence of a divorce decree with the same admission, as well as the passage of time and other factors, lower court's determination is affirmed.

G.M. v. R.G., No. 30020 (Per Curiam)(June 7, 2002). Reversing an order of the Circuit Court of Lewis County that would have precluded appellant from presenting DNA evidence showing that he was not the biological father in response to appellee's request for increase in child support. Holding that the circuit court erred in failing to allow appellant to present evidence regarding whether appellant's initial acknowledgment of paternity was induced by fraudulent conduct. If clear and convincing evidnce of such fraud exists, the circuit court is directed to reconsider the question of paternity.

SER WV DHHR, BUREAU for CHILD SUPP. ENF., et al., v. CARPENTER, No, 29774 (Davis, C.J.)(Albright, J., concurring in part and dissenting in part)(April 26, 2002).  Granting mixed relief from an order of the Circuit Court of Wood County that required the biological father of a child born out of wedlock to reimburse the DHHR for certain birth and medical expenses. Holding that the DHHR's ability to request reimbursement is dependent upon the biological father's ability to pay such costs on the date the mother was granted birth and medical benefits. Remanded for further proceedings.

MARLIN v. WETZEL COUNTY BD. of EDUCATION, et al., No. 30100 (Starcher, J.)(June 19, 2002). Reversing an order of the Circuit Court of Wetzel County declaring that property owner was not entitled to coverage under policies issued to its general contractor, in response to a lawsuit by employees of various subcontractors, who allege asbestos exposure during the construction work. Holding, inter alia, that insurance company may be estopped from denying coverage when policyholder relies to their detriment upon a misrepresentation in an insurance certificate.

AMERICAN STATES INS. CO. v. TANNER, et al., No. 29991 (Davis, C.J.)(April 26, 2002).  Reversing a grant of summary judgment in favor of insurer entered in the Circuit Court of Monongalia County. Holding that use of the rental vehicle at issue did not constitute regular use, and therefore the insurance policy's "regular use" exclusion does not apply to the claim at issue.

JEWELL v. FORD, et al., No. 30037 (Per Curiam)(Starcher, J., concurring)(April 12, 2002).  Reversing an entry of summary judgment in favor of insurer by the Circuit Court of Raleigh County in a declaratory judgment action arising from an automobile accident. Holding that genuine issues of material fact exist as to whether the plaintiff made a knowing and intelligent waiver of the additional, optional uninsured motorist coverage in accordance with W.Va. Code 33-6-31(b). Remanded for further proceedings.

TENNANT, et al. v. SMALLWOOD, No. 30036 (Davis, C.J.)(McGraw, J., dissenting)(Starcher, J., concurring)(April 5, 2002). Reversing a decision by the Circuit Court of Wetzel County that granted summary judgment in favor of the plaintiff below and permitted the plaintiff to collect UM benefits despite the fact that she had previously recovered proceeds from a policy insuring the defendant below. Holding that where a prior recovery from a defendant's motor vehicle insurance policy satisfies the financial responsibility laws of this State, that defendant is not an uninsured motorist. Accordingly, the UM provisions of the plaintiff's policy are not applicable.

PHARES v. BROOKS, et al., No. 30318 (Per Curiam)(June 17, 2002). Reversing an order of the Circuit Court of Mineral County that denied plaintiff's request for a hearing on whether a member of the jury panel in a personal injury action failed to properly respond to questions on voir dire regarding familiarity with the scene of the accident. Remanding for further proceedings.

O'DELL v. MILLER, et al., No. 29776 (Starcher, J.)(Maynard, J., dissenting)(May 24, 2002). Reversing a defense verdict in a medical malpractice action obtained in the Circuit Court of Wood County. Holding that the plaintiffs below were denied their right to a fair and unbiased jury when the trial court refused to remove for cause a juror who had been represented by the defendant's law firm, had been treated by the defendant doctor, and understood the implications of an adverse verdict. In three new syllabus points, setting forth specific guidelines for trial courts regarding the evaluation of prospective jurors.

CHARTER COMMUNICATIONS v. COMMUNITY ANTENNA SERVICE, INC., No. 30021 (Davis, C.J.)(Albright, J., disqualified)(Kaufman, Judge, by temporary assignment)(February 22, 2002). Answering certified question from the Circuit Court of Wood County whether W.Va. Code 24D-2-10 permits an exclusivity agreement between an apartment complex and a cable television provider. Finding that the provision in question is "repugnant to the purpose of the West Virginia Tenants' Right to Cable Services Act and is, therefore, void."

RINER, et al. v. NEWBRAUGH, et al., No. 30087 (Albright, J.)(April 5, 2002).
Reversing an order entered in the Circuit Court of Berkeley County that directed the appellants to sign a settlement agreement that differed in substance from the agreement reached as a result of the mediation conference. Setting forth standard of review and principles to govern the enforceability of settlement agreements reached through court-ordered mediation.

SER STOLLINGS v. HAINES, No. 30442 (Per Curiam)(Starcher, J. and Albright, J., concurring)(Maynard, J., disqualified)(King, Judge, by temporary assignment)(June 14, 2002). Denying writ of habeas corpus sought by inmate in connection with parole board decision to deny release. Rejecting argument that the decision to deny release was arbitrary and capricious, but admonishing the Board to set forth the individualized determinations required by syllabus point 3 of SER Carper v. WV Parole Bd., 203 W.Va. 583, 509 S.E.2d 864 (1998) in future decisions.

BD. of TRUSTEES of the POLICE OFFICERS PENSION and RELIEF FUND of the CITY of WHEELING v. CARENBAUER, No. 30102 (Maynard, J.)(May 31, 2002). Reversing an order entered in the Circuit Court of Ohio County regarding the applicability of W.Va. Code 8-22-24(d) to a municipal police officer whose pension vested prior to the statutory change in 1991. Holding that appellant demonstrated constitutional impairment of contract through detrimental reliance on the prior statute, and that he could not be compelled to produce tax returns nor have his disability pension reduced by $1 for every $3 of income earned in excess of $7,500.

KERNER v. AFFORDABLE LIVING, Inc., No. 30358 (Per Curiam)(Davis, C.J., concurring)(Starcher, J., and Albright, J., dissenting)(June 19, 2002).
Affirming Circuit Court of Upshur County's final order denying 60(b) relief from judgment to a corporate defendant in a wage-collection action. Corporation cannot avoid a judgment rendered against it by selling corporate assets to a corporation with a different name.

GRAHAM v. BEVERAGE, et al., No. 30110 (Albright, J.)(June 14, 2002). Granting mixed relief from summary judgment in favor of defendants entered in the Circuit Court of Berkeley County in an action for water runoff damage to real property. Reversing grant of summary judgment to property developers on an adjoining landowner's negligence claim, including the determination that the claim was time-barred. Holding that where a tort involves a continuing or repeated injury, the cause of action accrues at and the statute of limitations begins to run from the date of the last injury or when the tortious overt acts or omissions cease.

MILLS, et al. v. DAVIS, et al., No. 30121 (McGraw, J.)(Maynard, J., dissenting)(June 17, 2002). Reversing an order of the Circuit Court of Wayne County that dismissed, with prejudice, a tort action arising from a car accident due to plaintiff's failure to attend an independent medical examination scheduled within a month of trial. Communication between the parties suggested that both would seek a continuance, but instead State Farm moved for sanctions. Finding that the sanction of dismissal was unduly harsh under the facts of the case.

WESTFIELD INSURANCE CO., et al. v. TRIPLE CROWN FLOORING, Inc., No. 29962 (Per Curiam)(Starcher, J. and McGraw, J., dissenting)(May 3, 2002).  Reversing an order entered in the Circuit Court of Monongalia County that denied Triple Crown's motion to vacate a default judgment previously entered against it. Remanded for further proceedings and specific directions that the circuit court make the appropriate findings required by Syllabus Point 3 of Parsons v. Consolidated Gas Supply Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979).

DAVIS, et al. v. WALLACE, et al., No. 29966 (Per Curiam)(Davis, C.J. and Maynard, J., dissenting)(Starcher, J., concurring)(April 26, 2002).  Reversing an order entered in the Circuit Court of Greenbrier County that imposed monetary sanctions against the parties and attorney who filed an action against various persons alleging negligence in testing, preparation, and testimony provided at a criminal trial. Finding that the lower court abused its discretion by imposing sanctions for a novel cause of action not currently recognized in West Virginia.

LAWYER DISCIPLINARY BOARD v. BARBER, No. 26519 (Per Curiam)(McGraw, J., concurring in part and dissenting in part)(June 7, 2002). In a modified opinion, imposing a sixty-day suspension in lawyer disciplinary matter involving repayment of a loan from a client. The loan having been settled when the original opinion was filed, the Court refused a petition for rehearing, with a modified opinion to issue. Modifying the sanction to make clear that respondent is suspended for sixty days, with automatic reinstatement, and further clarifying that respondent is not required to pay the costs of the proceeding.

LAWYER DISCIPLINARY BOARD v. MORTON, No. 27051 (Per Curiam)(Davis, C.J. and Maynard, J., dissenting)(Starcher, J., concurring)(May 3, 2002).  Dismissing charges and rejecting a hearing panel subcommittee recommendation that respondent be publicly reprimanded, repay the client $1500, and pay costs of the proceeding based upon a violation of Rule 1.5(a)(1) of the Rules of Professional Conduct by obtaining a fee of $1500 from medical payments obtained on behalf of a client. Finding that respondent documented forty hours of work prior to termination of services, and in view of the language of the agreement and all relevant circumstances, the fee received "was not grossly proportionate to the services rendered and was not excessive." In future cases, the Board must examine "all of the relevant circumstances of a lawyer's engagement and the professional services in fact rendered when considering whether compensation is excessive, and that focusing on a single component of that compensation without consideration of the entire engagement and services rendered may lead, as it has here, to an unjust conclusion of impropriety."

LAWYER DISCIPLINARY BOARD v. FORD, No. 29463 (Per Curiam) (May 3, 2002).
Issuing admonishment, rather than the 45-day suspension recommended by the Hearing Panel Subcommittee, arising from respondent's conduct in improperly retaining fees due the law firm partnership. Respondent made full restitution and no clients were harmed. Admonishment issued.

DUNN v. WATSON, et al., Nos. 30249 and 30250 (Maynard, J.)(June 19, 2002).
Affirming a grant of summary judgment entered in the Circuit Court of Putnam County in favor of bank and trustee in action to set aside foreclosure sale. Clarifying requirements for issuance of notice of trustee sale under WV Code 38-1-4, including a rebuttable presumption of receipt when service is made by certified mail.

SER WARE v. HENNING, et al., No. 30471 (Per Curiam)(June 17, 2002).
Granting a writ of prohibition to prevent enforcement of an order entered in the Circuit Court of Randolph County compelling specific performance of a contract for the sale of land and abutting right-of-way entered into by the pastor of a religious organization. Holding that the religious organization's failure to comply with the statutes involving the appointment and registration of trustees, and those requiring action by proper trustees to validate a real estate transaction, renders its attempted purchase of the real estate void.

NAPIER v. NAPIER, No. 30015 (Davis, C.J.)(April 5, 2002).
Reversing an entry of summary judgment of the Circuit Court of Logan County that required removal of a mobile home and dismissed a counterclaim for wrongful eviction. Holding that a summary eviction proceeding may be brought under W.Va. Code 55-3A-1 et seq., against a person who has been permitted to possess rental property without having to pay rent in any form. Further holding that the summary judgment order was insufficient in that it failed to set forth sufficient findings that the tenant deliberately or negligently damaged the property or knowingly permitted another person to do so.

SCITES, et al. v. MARCUM, et al., No. 29760 (Per Curiam)(January 25, 2002).
Reversing a grant of summary judgment entered in the Circuit Court of Wayne County in a right-of-way dispute. In light of material questions of fact regarding both the right-of-way and the parties' rights to seek damages, summary judgment was inappropriate. Remanding for further proceedings.

AFFILIATED CONSTRUCTION TRADES FOUNDATION v. PSC AND BIG SANDY PEAKER PLANT, No. 29989 (Albright, J.)(Davis, C.J. and Maynard, J., concurring in part and dissenting in part)(Starcher, J., concurring)(February 22, 2002).
Affirming an order of the Public Service Commission that dismissed a complaint filed by the appellant, but addressing questions regarding: who has standing to file a complaint; which facilites are included in the statutory definition of public utility set forth in W.Va. Code 24-4-6; and the duties of the PSC to examine the nature of any internal funding mechanisms used to finance public utility construction.

POLITINO v. AZZON, No. 29766 (Per Curiam)(Albright, J., dissenting)(June 17, 2002). Affirming summary judgment entered in the Circuit Court of Kanawha County in a subrogation action involving corporate shareholders. Rejecting several arguments, including an assertion that to allow recovery on the subrogation claim would amount to unjust enrichment.

CNG TRANSMISSION CORP. v. CRAIG, Tax Comm'r, No. 29996 (Starcher, J.)(April 26, 2002).  Reversing an order entered in the Circuit Court of Harrison County upholding tax assessments against CNG for consumer sales taxes arising from the purchase of goods and services used in the transmission of natural gas owned by CNG. Holding that the statutes in effect at the time exempted the purchase of goods and services used in the transmission of natural gas from the consumer sales taxes, whether or not CNG owned the gas being transmitted.

TANKOVITS, et al. v. GLESSNER, et al., No. 30028. (Albright, J.)(April 5, 2002). Reversing orders of the Circuit Court of Ohio County pertaining to a settlement agreement arising from allegations of improper funding and management of a trust. Holding that the circuit court was without jurisdiction to characterize, for federal income tax purposes, a $900,000 settlement payment. Expressly declining to address the characterization of such funds due to the exclusive jurisdiction of the federal courts in this area of federal taxation.

CB&T OPERATIONS COMPANY, INC., et al. v. TAX COMMISSIONER, No. 29560. (McGraw, J.)(February 25, 2002). Reversing a judgment of the Circuit Court of Marion County that upheld assessment of a use tax imposed in connection with appellant's ostensible lease of data processing equipment and related software from a subsidiary. Holding that "it is the substance, not just the form, of a commercial transaction that determines its tax consequences." Finding that the transactions at issue are exempt from use tax, as an exempt service provided among commonly-controlled business enterprises.

HAWKINS v. FORD MOTOR CO., No. 30357 (Maynard, J.)(McGraw, J., concurring)(June 21, 2002). Granting mixed relief from an order entered in the Circuit Court of Kanawha County that denied plaintiff's motion for attorney fees and costs under the Magnuson-Moss Act and also refused to allow the plaintiffs to amend their complaint to assert bad faith and unfair trade practices claims against Ford Motor. Holding that the UTPA and the tort of bad faith apply only to those persons or entities or their agents who are engaged in the business of insurance; a self-insured entity is not in the business of insurance. Also holding that a consumer who prevails on a claim for breach of an implied warranty of merchantability under the UCC, WV Code 46-2-101 et seq., may recover reasonable attorney fees under the Magnuson-Moss Act, 15 USC 2310(d)(2). Remanding for award of reasonable attorney fees.

ALLSTATE WRECKER SERVICE, et al. v. KANAWHA COUNTY SHERIFF'S DEPT., et al., No. 30098 (Per Curiam)(McGraw, J., dissenting)(June 26, 2002). Affirming a grant of summary judgment entered in the Circuit Court of Kanawha County in favor of governmental appellees in suit alleging monopoly, conspiracy, and tortuous interference with regard to the provision of towing services. Affirming lower court's decision without addressing immunity, "given the dearth of evidence offered in support of the averments set forth in the complaint."

SER WEIRTON MEDICAL CTR., et al. v. MAZZONE, et al., No. 30360 (Maynard, J.)(June 19, 2002). Granting a moulded writ of prohibition to prevent the enforcement of certain evidentiary rulings issued by the Circuit Court of Brooke County in a wrongful death medical malpractice action. Construing provisions of the Medical Professional Liability Act, holding that necessity determinations and the timing of expert witness disclosures for both parties are to be resolved during the 55-7B-6 status conference, rather than being controlled by dates set forth in an initial scheduling order entered pursuant to R.Civ.P. 16.

SMITH v. BURDETTE, et al., No. 30101 (Starcher, J.)(June 14, 2002). Reversing summary judgment in favor of police officer and city entered in the Circuit Court of Kanawha County. Holding that the circuit court erred in finding that the city had political subdivision immunity when an on-duty city police officer's cruiser collided with another vehicle.

EDWARDS v. BESTWAY TRUCKING, Nos. 30122, 30123 (Per Curiam)(June 17, 2002). Reversing an order entered by the Circuit Court of Kanawha County in a personal injury action. Holding that a general umbrella liability insurance policy did cover the demonstrator vehicle used by the tortfeasor to drive a group of individuals to church at the time of the accident.

LOCKHART v. AIRCO HEATING and COOLING, Inc., No. 29961 (Maynard, J.)(May 31, 2002). Affirming a grant of summary judgment entered in the Circuit Court of McDowell County in favor of defendants in a wrongful death action. Appellant alleged that Airco negligently caused the decedent to "become extremely cold and catch pneumonia" during the installation of a new heating system, and as a result, the decedent died a month thereafter. Holding that the circuit court was correct in concluding that Airco owed no duty of care with regard to the health of the decedent. Further holding that mere breach of contract cannot sustain an action in tort. "A tort, although growing out of a contract, must nevertheless posses all of the essential elements of tort." Syl. pt. 10.

GOUNDRY v. WETZEL-SAFFLE, etc., et al., No. 30092 (Per Curiam)(McGraw, J., concurring)(March 1, 2002). Affirming summary judgment entered by the Circuit Court of Marshall County in favor of defendants in a medical malpractice action. Holding that plaintiff, who alleged failure to diagnose and treat pregnancy, was not subject to the common-knowledge exception recognized in Totten v. Adongay, 175 W.Va. 634, 337 S.E.2d 2 (1985), and was therefore required to produce a medical expert witness to establish the standard of care.

SER MOBIL CORP., et al. v. GAUGHN, et al., No. 30314. (Per Curiam)(Maynard, J., concurring)(Davis, C.J., disqualified)(Madden, Judge, by temporary assignment)(April 26, 2002).  Denying a writ of prohibition sought by defendants in asbestos actions referred to the mass litigation panel. Holding that required elements for prohibition were not met, and that "[t]he trial court deserves to be accorded the necessary flexibility to consider and address the issues raised by the parties and, perhaps even more critically, the opportunity to reevaluate the trial plan during its operation and to make necessary modifications when it determines that alterations are warranted." Further ordered that the mandate issue forthwith.

WILLARD v. WHITED, No. 29327 (McGraw, J.)(Davis, C.J. and Maynard, J., dissenting)(June 17, 2002). On rehearing, reversing an order entered in the Circuit Court of Jackson County dismissing a declaratory judgment action filed to clarify the impact of a special commissioner's report. While recognizing that declaratory judgment is not a substitute for a direct appeal, holding that in special and limited circumstances, where a purported final order leaves aspects of a case unresolved, a declaratory judgment action may be used to clarify the meaning or application of a previously existing court order.

PAINTER v. COLEMAN, No. 30255 (Albright, J.)(June 7, 2002). Affirming an order of the Circuit Court of Fayette County in favor of beneficiaries, against challenge by those who would benefit under intestate succession. Rejecting contention that testator's will failed to properly devise the estate.

LAMBERT v. WCD/VECELLIO & GROGAN, et al. , Nos. 30041-30043 (Davis, C.J.)(Maynard, J., concurring)(April 26, 2002).  Granting mixed relief in workers' compensation appeals in which claimants challenged their permanent total disability (PTD) onset date. Setting forth guidelines for selecting the "date of disability" from which the PTD award will be calculated, and holding that a social security disability award is persuasive evidence of the onset of PTD.

LAUDERDALE v. NEAL, et al. , No. 29963 (Per Curiam)(April 26, 2002).
Reversing an order of the Circuit Court of Kanawha County that awarded a surviving spouse $100 out of a $100,000 settlement previously disbursed to other family members. Remanding for full hearing on amount of damages fairly due the appellant, directing that lower court to determine whether the surety on the administrator's bond was an employee of the administrator's law firm at the time the bond was given. If the surety acted in the course of her employment, then new bond required at the expense of administrator, administrator's counsel, law firm or successor firm.