Topical Index of Slip Opinions of the January
1997 Term
TABLE OF CONTENTS
State of West Virginia ex rel. Ken Hechler, West Virginia Secretary of State v. Christian Action Network, a tax-exempt Virginia corporation, No. 23573 (W. Va. July 16, 1997) (McHugh, J.):
Affirming, in part, and reversing, in part, an order permanently enjoining the respondent from soliciting funds in West Virginia to support its lobbying efforts in Congress, the Court held that the circuit court did not err in ruling (1) that the respondent was a "charitable organization" subject to the requirements of the Solicitation of Charitable Funds Act, W. Va. Code, 29-19-1, et seq., and (2) that the requirement that the respondent include on all of its printed solicitations a notice that state residents may obtain a summary of the registration and financial documents from the Secretary of State does not violate the First Amendment right to speech, but did err in ruling that the respondent is required to file with the Secretary of State copies of all solicitation materials mailed to the public.
Affiliated Construction Trades Foundation and Bruce Tarpley, President of Affiliated Construction Trades Foundation v. Regional Jail and Correctional Facility Authority, and Jack Roop, Executive Director of the Regional Jail and Correctional Facility Authority, No. 23750 (W. Va. July 11, 1997)(Maynard, J.):
Affirming summary judgment for the defendant Authority in an action for declaratory and injunctive relief under the West Virginia Freedom of Information Act, W. Va. Code, 29B-1-1, et seq., the Court held that the circuit court did not err in ruling that certified payrolls are not public records within the meaning of the Act which the Authority could be compelled to produce for examination and inspection by plaintiffs below.
Taunia Hale v. Mingo County Board of Education, No. 23748 (W. Va. March 21, 1997)(Starcher, J.):
Reversing the dismissal of the claims of appellant, a school board secretary, that she was laid off during a reduction in force in violation of her seniority rights and remanding for further proceedings, the Court held that the circuit court erred in ruling (1) that appellant had to file a separate grievance to assert her claims and could not intervene in a grievance filed by another school board secretary on the same grounds and (2) that appellant's intervention was not timely where the record was silent as to the date on which appellant filed for intervention.
Delbert Martin v. West Virginia Division of Labor Contractor Licensing Board AND Larry Workman v. West Virginia Division of Labor Contractor Licensing Board, No. 23380 (W. Va., February 21, 1997)(Davis, J.):
Affirming, in part, and reversing, in part, a ruling of the circuit court prohibiting the Board from suspending the license of two contractors against whom default judgments were entered in magistrate court, the Court ruled that judgment in magistrate court for performing substandard work is not a judgment in a court of record which warrants disciplinary action under W. Va. Code, 21-11-14(h)(1991), but that because the Board acted in good faith in taking disciplinary action, the circuit court erred in awarding plaintiffs attorney fees.
State of West Virginia ex rel. Ron Kern and Sandra Kern v. Katherine Santucci, Magistrate for Jefferson County and Brian S. Riedmuller, No. 24131 (W. Va. July 11, 1997)(Maynard, J.):
Granting a moulded writ of prohibition to prevent the dismissal of petitioners' appeal from magistrate court ruling for failure to post bond, the Court held that the magistrate did have authority to require the posting of an $800 appeal bond nunc pro tunc upon discovering that, through oversight or omission, no bond had been required as mandated by Rule 18(b) of the Rules of Civil Procedure for Magistrate Courts, but that the magistrate was required to give timely notice of the correction of the appeal bond to any party adversely affected thereby. The Court afforded the petitioners a twenty-day period in which to post the bond or to seek a waiver thereof under Rule 22 of the Rules of Civil Procedure for Magistrate Courts and, upon the posting of such bond or the filing of the affidavit of indigency, ordered the respondent to refrain from impeding the petitioners' appeal to circuit court.
In the Matter of John Curtis Dortch, No. 24040 (W. Va., April 14, 1997)(McHugh, J.):
Rejecting the application for admission to the practice of law of an individual who had been convicted of second-degree murder, attempted armed robbery and conspiracy in conjunction with the death of a police officer during an attempted robbery planned by the applicant, the Court held that (1) this Court reviews de novo and exercises its own independent judgment with regard to recommendations of the West Virginia Board of Law Examiners as to questions of whether an applicant should or should not be admitted to the practice of law; and (2) despite evidence of rehabilitation, the failed to carry his heavy burden of persuading this Court that he presently possesses sufficiently good moral character to outweigh the horrendous crime of which the applicant was the prime conspirator.
Keith Shaffer, Administrator of the Estate of Keith Shaffer, II, deceased and Keith Shaffer, individually, Thomas G. Wilson v. Charleston Area Medical Center, Inc., a West Virginia corporation, Arvind Z. Vrandia, M.D., and Brigette Joseph, M.D., Crystal Hawkins Castleberry, No. 23419 (W. Va. March 19, 1997)(McHugh, J.):
Affirming, in part, and reversing, in part, an order quashing a charging lien filed by appellant attorney against the settlement of a civil action by appellee, also an attorney and appellant's former associate, the Court ruled (1) the circuit court did not err in not allowing appellant additional time to submit proof on a quantum meruit claim where appellant was well aware that appellee would be presenting evidence on such claim and was given an additional ten days to provide proof, but failed to do so, and (2) the circuit court erred in not allowing appellant to develop his theory that he was entitled to one-half of the attorney fees from the settlement by virtue of an oral agreement with appellee and remanded the case for further proceedings.
Lawyer Disciplinary Board v. Charles H. Hatcher, Jr., a member of the West Virginia State Bar, No. 22429 (W. Va., February 21, 1997)(McHugh, J.):
Dismissing the complaint against the respondent, the Court ruled that charges that the respondent, an assistant prosecuting attorney, knowingly failed to make a timely disclosure to the defense of exculpatory evidence in violation of Rule 3.8 of the Rules of Professional Conduct were not proven by clear and convincing evidence.
State of West Virginia ex rel. Linda Ward, as executrix of the estate of L.David Ward, and Linda Ward, Individually and as mother and next friend of Isaac Willard Ward, Benjamin David Ware, Tiffany Sheree Ward and Kenneth Ryan Ward v. Honorable George W. Hill Jr., Judge of the Circuit Court of Wood County, F. G. Powderly, M.D.; Bruce Pierson, Jr., M.D.; and Jorge E. Prieto, M.D., No. 23989 (W. Va. July 2, 1997)(Starcher, J.):
Granting a writ of prohibition to prevent enforcement of a circuit court order allowing nonsettling defendants in a medical malpractice action to interview and use at trial the testimony of a settling defendant's expert witness, the Court held that (1) the circuit court abused its discretion under W. Va.R.Civ.P. 6 in holding a hearing on the non-settling defendants' motion to depose the settling defendant's experts where plaintiffs were given only about 24 hours notice of such hearing and almost no time to prepare; (2) absent a formal agreement among defendants in a litigation proceeding involving multiple defendants, the circuit court should not generally permit a settling defendant's expert witnesses to testify for the remaining defendants; and (3) when a settlement agreement between the settling defendant and the plaintiffs prohibits the continued use of the settling defendant's expert witnesses by the remaining defendant's the circuit court, subject to W. Va.R.Civ.P. 26(b)(4)(B), should honor that agreement by not permitting the remaining defendants to use or present such information in the preparation for or conduct of the trial.
West Virginia Trust Fund, Inc., a West Virginia non-stock, non-profit corporation, as Trustee v. Honorable Larrie Bailey, Treasurer of the State of West Virginia and State of West Virginia ex rel. Honorable Darrell V. McGraw, Jr., in his official capacity as the Attorney General of West Virginia v. West Virginia Trust Fund, Inc., a West Virginia corporation; and David Gardner, Chairman, West Virginia Trust Fund, Inc. and Stanley L. Klos v. Honorable Larrie Bailey, Treasurer of West Virginia and State of West Virginia ex rel Stanley Klos v. West Virginia Board of Investments, a body corporate of the State of West Virginia and West Virginia Trust Fund, Inc., a West Virginia corporation, No. 23939 (W. Va. March 28, 1997)(Starcher, J.):
Affirming, in part, and reversing, in part, an order ruling that the West Virginia Trust Fund Act, W. Va. Code, 44-6B-1, et seq., allowing placement of state employee pension funds and the workers' compensation and coal workers' pneumoconiosis funds in an irrevocable trust fund managed by West Virginia Trust Fund, Inc., a non-profit, non-stock corporation for purposes of investing up to sixty percent of such funds in corporate equities, is unconstitutional, the Court held (1) West Virginia Trust Fund, Inc., has a sufficient fiduciary and symbiotic relationship with the State so as to make it subject to the prohibition in W. Va. Const., art., X, sec. 6, against investment of State funds in corporate stocks; and (2) the circuit court erred in ruling that the statute usurps or interferes with the duties and powers of the State Treasurer.
State ex rel. West Virginia Division of Natural Resources; Charles B. Felton, Jr., Director, West Virginia Division of Natural Resources; and James D. Fields, Chief, Law Enforcement Division, West Virginia Division of Natural Resources v. Honorable Danny O. Cline, Judge of the Circuit Court of Braxton County; Shelly L. DeMarino, Prosecuting Attorney for Gilmer County; and Ernest V. Morton, Jr., Prosecuting Attorney for Webster County, No. 23840 (W. Va., February 20, 1997)(Davis, J.):
Granting a writ of prohibition to prevent enforcement of the circuit court's order dismissing prosecution of a DNR citation charging the carrying a loaded firearm in a motor vehicle, the Court held that the provisions of W. Va. Code, 20-2-5(10)(1994), prohibiting the vehicular transportation of a loaded firearm, do not violate the right to keep and bear arms for lawful purposes enunciated in W. Va. Constitution, Article III, Section 22.
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State v. Lorie Ann McGuire, No. 23671 (W. Va. July 18,1997)(Workman, C.J.):
Affirming defendant's conviction of voluntary manslaughter conviction arising from the death of her newborn, the Court held, inter alia, that (1) there was insufficient evidence that the baby was stillborn to warrant giving a defense instruction on proof and definition of "live birth"; (2) defense instructions on involuntary manslaughter were incomplete and inaccurate and the State's instruction on voluntary manslaughter was supported by the evidence; (3) the exhumation of the body for a second autopsy upon the State's ex parte request was not a critical stage of the proceedings entitling defendant to notice and the right to be present; and (4) the circuit court did not err in not granting defendant credit for time served when she was out on bail on home confinement prior to trial.
State of West Virginia v. Gary "Mo" Wade , No. 23559 (W. Va. July 11, 1997)(Davis, J.):
Affirming defendant's conviction of felony murder without mercy, the Court held that (1) self-defense and provocation are not available as defenses to a charge of felony murder where the predicate felony is delivery of a controlled substance; (2) as a matter of law, second-degree murder, voluntary manslaughter and involuntary manslaughter are not lesser included offenses of felony murder; (3) the evidence of defendant's participation in the drug transaction was sufficient to support the felony murder conviction; (4) the circuit court did not err in admitting testimony of the victim's father; and (5) the court did not abuse its discretion in not removing for cause two of the jurors.
State v. Samuel Farmer, No. 23701 (W. Va. July 3, 1997)(Workman, C.J.):
Affirming defendant's convictions of four counts of delivery of marijuana, the Court held that (1) the circuit court's sua sponte questioning of the State's only witness outside the presence of the jury to clarify confusing testimony as to the dates on which defendant allegedly sold him marijuana did not exceed the court's authority under W. Va.R.Evid. 614(b).
State of West Virginia v. Tracy John Craft, No. 23610 (W.Va. June 24, 1997)(McHugh, J.):
Affirming defendant's sentence of life without mercy following his plea of guilty to first-degree murder, the Court held that when defendant or counsel objects to alleged factual inaccuracies in the presentence investigation report of the summary of the report, the circuit court is required under W. Va.R.Crim.P. 32(c)(3)(D) make findings as to every allegation of inaccuracy or a determination that no such finding is necessary, but defendant's failure to raise the issue constituted a waiver.
State of West Virginia v. Anthony Ray Mc., No. 23736 (W.Va. June 19, 1997)(Davis, J.):
Reversing the transfer of a juvenile, charged with murder, to adult jurisdiction, the Court held that the circuit court erred in not conducting an inquiry pursuant to State v. Mason, 194 W. Va. 221, 460 S.E.2d 36 (1995), to determine whether a prior statement, given by a witness who invoked his Fifth Amendment right against self-incrimination at trial, was a declaration against penal interest of an unavailable witness and therefore admissible as an exception to the hearsay rule.
State of West Virginia v. Donald E. Williams, Jr., No. 23744 (W. Va. June 18, 1997)(Starcher, J.):
Affirming defendant's conviction of second-offense DUI, the Court held, inter alia, that unless it can be shown that the factual predicates for a prior out-of-state DUI conviction failed to include any element of the West Virginia DUI statute, the prior out-of-state DUI conviction is prima facie proof for purposes of sentence enhancement. The Court ruled that the mere fact that the Virginia DUI statute prohibited "driving or operating" a vehicle while under the influence of alcohol, while the West Virginia DUI statute prohibited only "driving" in such a condition, did not preclude the use of the Virginia conviction for sentence enhancement purposes.
State of West Virginia v. James Quinn, No. 23537 (W. Va. June 4, 1997)(Starcher, J.):
Affirming defendant's conviction of sexual misconduct toward a child by a custodian, the Court held that the circuit court did not err in ruling that (1) the Rape Shield Law, W. Va. Code, 61-8B-11, prohibited the defendant from cross-examining the child victim about statements she had previously made about having been the victim of sexual misconduct by persons other than the defendant where the defendant failed to make a prior threshold showing outside the presence of the jury of substantial proof that the other statements of the victim were false and (2) prior consistent statements by the child victim regarding the defendant's alleged sexual misconduct were not hearsay and were admissible under W. Va.R.Evid. 801(d)(1)(B).
State of West Virginia ex rel. Franklin Ring v. Gail Boober, Jefferson County Magistrate, No. 23676 (W. Va. May 30, 1997)(Maynard, J.):
Affirming the circuit court's denial of a petition for a writ of prohibition to prevent a bench trial in magistrate court on a charge of receiving and transferring stolen goods, the Court ruled that W. Va. Code, 50-5-8(b) and Rule 5(c) of the West Virginia Rules of Criminal Procedure for Magistrate Courts, providing for a waiver of the right to a jury trial in magistrate court if a written request for a jury trial is not made within 20 days from the date of the defendant's initial appearance (or, if the defendant is indigent, from the date of appointment of counsel), does not unconstitutionally deprive a defendant of his right to trial by jury.
State of West Virginia v. Christopher Whetzel, No. 23846 (W. Va. May 30, 1997)(Maynard, J.):
Affirming an order requiring defendant, who pled guilty to accessory after the fact to second-degree arson, to make restitution to the victim of the arson, the Court held that under W. Va. Code, 61-11A-4, accessories may be held required to make restitution for physical, psychological or economic injuries or losses to a victim resulting from the commission of the principal offense.
State of West Virginia ex rel. Ginny Conley, Prosecuting Attorney for Wood County v. Honorable George W. Hill, Judge of the Circuit Court of Wood County, No. 23839 (W. Va. May 30, 1997)(Workman, C.J.):
Granting a moulded writ of prohibition to prevent the respondent from instructing grand juries that they could not use Ohio DUI convictions for purposes of sentence enhancement in a West Virginia DUI prosecution under W. Va. Code, 17C-5-2(k), the Court held that even though the Ohio DUI statute contains different elements, an Ohio DUI conviction may be used for sentence enhancement in West Virginia as long as the facts giving rise to the Ohio conviction would have supported a DUI conviction in West Virginia.
State v. Ronnie Redden, No. 23879 (W. Va. May 29, 1997)(Starcher, J.):
Affirming defendant's conviction of first-degree sexual assault following a bench trial in circuit court, the Court held that (1) the circuit court did not err in concluding that defendant had knowingly, intelligently and voluntarily waived his right to a jury trial and (2) where a transcript of an on-the-record waiver hearing clearly shows that the defendant personally made a knowing, intelligent and voluntary waiver of his right to jury trial, the circuit court's failure to obtain defendant's signature on a written waiver, as required by Rule 23(a) of the West Virginia Rules of Criminal Procedure, does not, of itself, invalidate such waiver.
State of West Virginia ex rel Glen Aaron, Kimberly Brogan, Brian Russell Clark, Brent McCrea, Roy DeAngelo Sharpless and Robert Lee Williams v. Honorable Charles E. King, Judge of the Circuit Court of Kanawha County, and John J. Myatt, Chief Probation Officer for the Thirteenth Judicial Circuit, No. 23932 (W. Va., April 11, 1997)(Davis, J.):
Granting a writ of mandamus sought by criminal defendants to compel the circuit judge and the probation officer to provide them with copies of presentence investigation reports prior to sentencing, the Court held that (1) W. Va. R. Crim. P. 32 requires that criminal defendant and his or her counsel be provided with a copy of the presentence investigation report; (2) a circuit court must, without exception, spread upon the record the fact that a criminal defendant has had the opportunity to read and discuss the presentence investigation report with counsel; and (3) matters required to be excluded from the presentence investigation report under W. Va. R. Crim. P. 32(b)(5) should be provided to the sentencing court, but not to the defendant or counsel unless such information will be relied on in sentencing, in which case it must be summarized by the court, in writing, and provided to defendant and counsel.
State of West Virginia v. Judy Browning, No. 23457 (W. Va. March 17, 1997)(Maynard, J.):
Affirming defendant's convictions of first-degree murder with mercy and shooting at a person in a public street, the Court held (1) the evidence was sufficient to support the convictions; (2) in a murder case, an instruction that a jury may infer malice and intent to kill from the use of a deadly weapon does not unconstitutionally shift the burden of proof where the State proves beyond a reasonable doubt that the defendant, without lawful justification, excuse or provocation, shot the victim with a firearm; (3) the admission of the victim's statement, made in the presence of defendant and others, that defendant always carried a gun did not violate defendant's right to confront witnesses where defendant did not dispute the statement at the time, and it was only introduced after defendant testified that she did not carry a gun; (4) admission of the victim's statement that he had had an argument with defendant and terminated his relationship with her was not error where defense counsel failed to object on the ground that the statement was hearsay and the statement was relevant to prove motive; (5) admission of handwritten notes illegally seized from defendant's home was not error where they were introduced to impeach defendant's credibility after she testified that she did not recall the victim terminating their relationship; and (6) defendant was afforded a right of allocution at her sentencing hearing.
State of West Virginia v. William Bradford, No. 23454 (W. Va. March 14, 1997)(Maynard, J.):
Affirming defendant's convictions of first-degree murder without mercy in the shooting and dismemberment of his father, second-degree sexual assault of his step-mother, and use of a firearm in the commission of a felony, the Court held that (1) the circuit court's decision to admit inculpatory statements defendant made to police after he was advised of his Miranda rights was not clearly wrong where, although defendant stated "I'm done talking", it could logically be inferred from the surrounding circumstances that defendant was referring only to further discussion of the dismemberment, and was not exercising his right to remain silent on other matters; (2) the crime of accessory after the fact is not a lesser included offense of first-degree murder which would warrant the giving of an instruction; (3) the trial court's refusal to allow defendant to cross-examine his step-mother as to supposed discord in her marriage to the victim as a motive for her to murder him was not error where defendant was allowed to testify as to his version of events, implicating his step-mother, and there was no other evidence directly linking her to the murder; (4) the prosecution's references to defendant's use of foul language, the dismemberment of the victim, and the Bible were not prejudicial where the defense made as many references to the evidence as the State and did not object to the references to the Bible; and (5) the fact that three different judges presided over various stages of the proceedings did not deny defendant due process or a fair trial.
Timothy W. Clark, Jr. and Brian K. Cunningham v. Kawasaki Motors Corp., U.S.A., and Kawasaki Heavy Industries, Ltd., No. 23395 (W. Va. July 16, 1997) (McHugh, J.):
Affirming a judgment for the plaintiffs in an action against defendant ATV manufacturer for injuries plaintiffs sustained while using the ATV, the Court held that the circuit court properly used the "settlement first" method of reducing the jury verdict to reflect prior settlements and the comparative fault of the parties, i.e., by first subtracting the amount of the prior settlements from the jury verdict and then reducing the remainder by the percentage of plaintiffs' comparative negligence, rather than the "fault first" method.
Roberta Meadows and Tara Sue Morgan v. Wade Belknap and Gary Cogar AND Carma Perrine v. Roberta L. Meadows and Tara Sue Morgan, No. 23534 (W. Va., February 21, 1997)(Davis, J.):
Reversing denial of injunctive relief to plaintiff to prevent her daughters from interfering with her right to dispose of timber on real property, the Court ruled that plaintiff's deceased husband's conveyance of the property, to which he owned fee simple title, to defendants with a reservation of a life estate and timber rights to himself and plaintiff, in which deed plaintiff joined, extinguished plaintiff's dower interest and conveyed to plaintiff the right to use the property during her lifetime, including the right to dispose of the timber thereon and to prevent defendants' interference with such right.
Martin Greenfield v. Schmidt Baking Company, Inc., John F, Morrison and Dennis Swartz, No. 23574 (W. Va. March 19, 1997)(Davis, J.):
Reversing summary judgment for the defendant employer in an action for defamation, invasion of privacy, intentional infliction of emotional distress, and the tort of outrage arising from defendant's posting of a letter at the workplace indicating that plaintiff had abused the company's sick leave policy and remanding for further proceedings, the Court held that the circuit court erred in ruling that plaintiff's claims were pre-empted by federal law under §301 of the Labor Management Relations Act of 1947, 29 U.S.C. §185, where resolution of plaintiff's state court claims does not require an interpretation of the collective bargaining agreement between the parties.
State of West Virginia ex rel. United Hospital Center, Inc., a corporation v. Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County, and Mary Mobley, Administratrix of the Estate of Agnes Becker, No. 23847 (W. Va. March 14, 1997(McHugh, J.):
Granting a moulded writ of prohibition in a proceeding seeking to prevent enforcement of discovery orders in a civil action arising from the fall of a 93-year-old woman at the petitioner's hospital, the Court held that (1) neither an incident report prepared by a nurse at the time of the fall nor a subsequent investigative report of the facts surrounding the fall was protected by the attorney-client privilege where neither report involved protected attorney-client communications; (2) the incident report was not protected by the work product doctrine where the primary motivating purpose behind its creation was not to assist in pending or probable future litigation, but to comply with hospital rules and regulations requiring preparation of such reports in the ordinary course of business; (3) the investigative report was is protected by the work product doctrine only to the extent that it involves opinion work product - factual work product portions of the document are discoverable on a showing of "substantial need" or "undue hardship" to the moving party; and (4) in designating its general counsel to testify during depositions, the petitioner waived the attorney-client privilege and the work product doctrine as to factual matters counsel was asked to recount in the deposition. The Court issued the writ only with regard to the investigative report and only to the extent that the circuit court had yet to determine which portions of the report, if any, involved opinion work product protected from discovery and factual work product which was discoverable on a proper showing of need.
Letitia Danette Huber v. James Patrick Huber, No. 23407 (W. Va. June 11, 1997)(Davis, J.):
Reversing a divorce order granting plaintiff ex-wife 10% of defendant ex-husband's $475,00 personal injury settlement as compensation for loss of consortium, the Court ruled that (1) the non-injured spouse has the burden of proving the amount of a tort settlement or verdict allocated for loss of consortium, which is the separate non-marital property of the non-injured spouse; (2) the injured spouse has the burden of proving the amount of a tort settlement or verdict allocated for non-economic and post-divorce loss, which is the separate non-marital property of the injured spouse; and (3) to the extent the parties do not provide sufficient evidence to make an allocation of all of a tort settlement or verdict, the balance shall be classified as marital property subject to equitable distribution. The Court held that the circuit court and the family law master failed to make adequate findings of fact to establish what portions of the settlement were marital and non-marital property and remanded for further proceedings.
James M. Porter v. Stephanie A. Bego, No. 23473 (W. Va., May 12, 1997)(Starcher, J.):
Affirming an order requiring plaintiff father to pay $565.16 in monthly child support, the Court ruled that (1) the evidence supported a finding that plaintiff voluntarily and without just cause quit his job and wasted assets to avoid paying child support; consequently, the circuit court did not err in attributing to plaintiff the income he would have earned from those sources in calculating child support; and (2) the circuit court did not err in not reducing the support obligation to $485.82 per month as recommended by the family law master in a previous support reduction proceeding where no order was ever entered by the circuit court implementing such recommendation.
Barbara Ann Spence v. Mark Vernon Spence, No. 23751 (W. Va., May 12, 1997)(Starcher, J.):
Affirming a ruling awarding defendant ex-husband the dependent income tax exemption for the parties' infant child, the Court ruled that while the family law master should have considered the income of plaintiff's husband in determining her household income, the record did not show that the award of the exemption to the non-custodial parent was inequitable in this case.
Karen Pearson v. Roger Pearson, No. 23679 (W. Va., March 21, 1997)(Davis, J.):
Affirming, in part, and reversing, in part, and remanding for further proceedings in plaintiff ex-wife's appeal of an alimony award and property division in a divorce action, the Court held that (1) the circuit court failed to make appropriate findings of fact to warrant an award of $375 per month in permanent alimony where the family law master recommended only $150 per month and to justify denial of attorney fees to the legal aid service which represented plaintiff; (2) plaintiff failed to adduce sufficient evidence to warrant an additional lump sum award of alimony to compensate her for alleged physical and emotional abuse during the marriage; (3) the circuit court did not err in terminating alimony once defendant ex-husband reaches 65 or not granting plaintiff a set-off in property distribution based on defendant's anticipated receipt of retirement benefits statutorily excluded from consideration as property subject to equitable distribution under the Railroad Retirement Act of 1974; (4) the circuit court erred in issuing restraining orders against the parties pursuant to W. Va. Code, 48-2-15(b)(9) without a finding of abuse; and (5) there was insufficient evidence to conduct a meaningful review of whether the circuit court erred in awarding a credit union account to defendant.
State of West Virginia ex rel. George B. W. v. Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, and Sharon B. W., No. 23927 (W. Va. March 3, 1997)(Workman, C.J.):
Granting a moulded writ of prohibition to prevent enforcement of an order mandating immediate visitation between the child and the mother and requiring an additional psychological evaluation of the child following an award of emergency custody to the father on allegations of sexual abuse of the child in the mother's home, the Court held that the circuit court exceeded its legitimate authority in ordering mandatory visitation and a psychological evaluation without holding a hearing to determine whether such actions were in the best interest of the child and remanded for an immediate hearing on the visitation issue and a hearing on the evaluation issue.
Robert L. Burkhart v. Honorable Virginia M. Sine, Circuit Clerk of Berkeley; Howard Strauss; D. Wayne Dunham, County Commissioner of Berkeley County; Robert S. Butler and John E. Wright, No. 23974, and Robert L. Burkhart v. Honorable Virginia M. Sine, Circuit Clerk of Berkeley; Howard Strauss; D. Wayne Dunham, County Commissioner of Berkeley County; Robert S. Butler and John E. Wright, No. 23975 (W. Va. June 19, 1997)(Maynard, J.):
Reversing denial of a writ of mandamus to declare the unsuccessful candidate for county commissioner in the general election ineligible and to compel certification of the unsuccessful candidate, the Court ruled that (1) where a candidate for county commission contests the qualifications of another candidate prior to the election in a mandamus proceeding, the litigation is not governed by the procedure provided in W. Va. Code, 3-7-6 and 3-7-7, and (2) pursuant to W. Va. Constitution, article 9, section 10, providing that no two county commissioners shall be elected from the same magisterial district, a person is "elected" from the magisterial district in which he or she resides on the date of the general election, which is determined by the magisterial district in which he or she residence on the date candidacy papers were filed. Consequently, the Court held that the circuit court erred in not holding the winner of the general election ineligible to hold office because he was elected from the same magisterial district in which a sitting commissioner resided at the time the candidacy papers were filed and in not certifying the other candidate as the winner of the general election.
In re: the election contest between John C. Moore and Edward Powell for the Office of Weirton City Council, Ward Three, of the Municipal Corporation of Weirton, West Virginia, No. 23848 (W. Va. June 19, 1997)(Maynard, J.):
Reversing a judgment setting aside a prior decision declaring petitioner the victor in a city council election after a coin toss and instating petitioner's opponent, the Court held that once the circuit court declared the election an tie to be broken by lot under W. Va. Code, 8-5-15, the election was decided by the coin toss, and the court had no authority to make the decision conditional on its ruling on a motion for reconsideration or to remove petitioner from office once he had taken the oath of office and remanded for entry of an order reinstating petitioner to office.
Evelyn Rollins v. Mason County Board of Education, No. 23549 (W. Va. July 3, 1997)(Workman, C.J.):
Affirming the circuit court's denial of a petition for writ of mandamus to compel the Board of Education to reinstate health insurance benefits to a school bus driver on medical leave, holding that the circuit court did not err in ruling that W. Va. Code, 23-5A-2, prohibiting an employer from terminating an employee's health insurance benefits when the employee is claiming or receiving workers' compensation benefits, did not prevent the Board of Education from ceasing payment of its portion of the health insurance premium where the employee was protesting the closing of her claim for temporary total disability benefits and the denial of her motion to reopen her claim.
William E. Cutright v. Metropolitan Life Insurance Company, et al., No. 23884 AND William E. Cutright v. Metropolitan Life Insurance Company, et al., No. 23956 (W. Va. July 11, 1997) (Maynard, J.):
Affirming, in part, and reversing, in part, summary judgment in a wrongful discharge action brought by an insurance agent against his former employer, the Court held that the issue of whether plaintiff's discharge for sexual discrimination violated state law was preempted by Title VII of the Civil Rights Act of 1964.
Sharon Williamson v. Warren Greene, et al., No. 23742 (W. Va. June 2, 1997)(McHugh, J.):
Answering questions certified by the Circuit Court of Jefferson County in sexual harassment and gender discrimination litigation under the West Virginia Human Rights Act, W. Va. Code, 5-11-1 et seq., the Court ruled that (1) under W. Va. Code 5-11-3(d), an "employer" is "any person employing twelve or more persons within the state" at the time that the acts giving rise to the alleged discriminatory practice were committed; and (2) sexual harassment and gender discrimination in employment are contrary to the public policy of this State, so that even though a discharged at-will employee has no statutory claim for retaliatory discharge under the Human Rights Act because his or her employer did not employ the required number of employees at the time the acts giving rise to the alleged discriminatory conduct occurred, such employee may nevertheless maintain a common-law action for retaliatory discharge on such grounds under Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978).
David J. Hosaflook and Kathryn Hosaflook v. The Consolidation Coal Company, Ronald Stovash and Thomas Simpson, No. 23045 (W. Va. June 2, 1997)(McHugh, J.):
Affirming summary judgment against an employee who filed suit for handicap discrimination after he was laid off as part of a company reduction-in-force while on disability leave for retinitis pigmentosa, the Court, on rehearing, held that (1) disability leave is not a "job" within the meaning of 77 W. Va. C.S.R. §1-4.2 and (2) the receipt of disability benefits does not constitute the "performance of services" under W. Va. Code, 5-11-9(1) so as to render the employee a "qualified handicapped person" entitled to maintain an action under the West Virginia Human Rights Act for handicap discrimination.
West Virginia Division of Environmental Protection v. Kingwood Coal Company, No. 23876 (W. Va. July 16, 1997)(McHugh, J.):
Affirming an order of the Surface Mine Board ruling that the respondent coal company could not be held responsible for the clean-up of acid mine drainage attributable to the mining of coal by an entity which had leased the mineral rights from respondent's predecessor in title, the Court held that the circuit court did not err in ruling that the respondent had successfully rebutted the presumption of ownership and control of the mining operations, which arose from the respondent's ownership of and right to receive or control the coal after mining, by showing that it did not, in fact, have the authority, directly or indirectly, to determine the manner in which the surface mining operation was conducted.
Ralph E. Evans and Nellie S. Evans v. Mutual Mining, No. 23550 (W. Va., April 11, 1997)(Starcher, J.):
Affirming, in part, and reversing, in part, a $5,000 verdict in an action for property damage due to escape of an impoundment of water under the control of defendant, the Court held that the circuit court erred in (1) excluding plaintiffs' testimony as to the value of their personal property destroyed by the water; (2) excluding evidence of other instances of flooding on their property; and (3) not directing a verdict for plaintiffs on the issue of liability on a theory of strict liability, but (4) did not err in excluding evidence of mental anguish.
Robert S. McGraw v. St. Joseph's Hospital, a corporation, and Thomas J. Tarney, M.D., No. 23540 (W. Va., February 21, 1997)(Davis, J.):
Reversing summary judgment for defendant in an action by plaintiff for injuries suffered in a fall while a patient in defendant hospital and remanding for further proceedings, the Court held that the circuit court erred in ruling that (1) expert testimony was required as to nonmedical, administrative, ministerial or routine care in a hospital, because the jury is competent form its own experience to determine and apply a reasonable care standard, and (2) plaintiff did not have an expert, where plaintiff's witness testified to the standard of care and whether defendant had met it.
State of West Virginia ex rel. the Charleston Mail Association and the Daily Gazette Company v. Honorable Lyne Ranson, Judge of the Circuit Court of Kanawha County; William C. Forbes, Prosecuting Attorney for Kanawha County; and Frank West, No. 23873 (W. Va. March 14, 1997)(Davis, J.):
Issuing a moulded writ of prohibition to prevent enforcement of subpoenas duces tecum requiring newspapers to turn over to a criminal defendant unpublished photos of a crime scene, the Court held that (1) when a criminal defendant seeks unpublished, nonconfidential information form a news source, he/she must show with particularity that (a) the requested information is highly material and relevant to the defendant's articulated theory of defense, (b) the requested information is necessary or critical to the defendant's assertion of his/her articulated theory of defense, and (c) the requested information is not obtainable from other sources, and (2) once a criminal defendant has shown with particularity the information requested satisfies this three-part balancing test, the circuit court must conduct an in camera review of the requested material and release to defendant only that information which the court deems relevant to defendant's articulated theory of defense, making specific written findings of fact to support its ruling. The Court determined that the circuit court failed to follow this procedure and issued a moulded writ, allowing further proceedings in circuit court on the issue.
State of West Virginia ex rel. Terry Lynn Watson v. Honorable George W. Hill, Jr., Judge of the Circuit Court of Wood County, No. 23849 (W. Va. June 10, 1997)(Workman, C.J.):
Granting a moulded writ of mandamus, the Court ruled that the circuit court granting or denying a writ of habeas corpus has a mandatory duty under W. Va. Code, 53-4A-7(c) to make specific findings of fact and conclusions of law relating to each contention advanced by the petitioner and to state the grounds upon which the matter was resolved and directed the circuit court to conduct a hearing on the merits of petitioner's ineffective assistance claim and to issue a proper order explaining its decision.
State of West Virginia ex rel. Diva P., and the State of West Virginia v. Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, and Sherry P., No. 23928 (W. Va. July 11, 1997)(Davis, J.):
Denying a petition for a writ of prohibition sought by the prosecuting attorney, on behalf of "the State", and the guardian of a child in a civil abuse and/or neglect proceeding to prevent implementation of a three-month improvement period with the mother approved the Department of Health and Human Resources, the Court held that (1) the State was not a proper party to the prohibition proceedings because in civil abuse and neglect actions, the prosecuting attorney stands in an attorney-client relationship to the DHHR and has no authority to litigate such actions independent of DHHR and (2) the circuit court did not abuse its discretion in not terminating the mother's parental rights. The Court ordered DHHR to submit to the circuit court its case plan.
State ex rel. United Mine Workers of America, Local Union 1938, Dana V. Bender, Clarence D. Dixon, Dennis D. Harris, Paul G. Isner, Donald D. Lloyd, Jerry A. Marco, Mason E. Payne, Larry I. Pigot, Dwight L. Riegel, Jimmie G. Samples, James H. Shiflett, Ronald L. Thorne and Wayne a Woodall v. Honorable John L. Waters, Judge of the Circuit Court of Barbour County, and Energy Marketing Company, Inc., a West Virginia corporation, No. 23838 (W. Va., February 24, 1997)(Starcher, J.):
Granting a moulded writ of prohibition to prevent enforcement of an order enjoining petitioners from picketing their employer, the Court held that the circuit court erred in (1) issuing an ex parte preliminary injunction where the employer did not certify to the court at the time it applied for the injunction the reasons for not giving prior notice to petitioners as required by SER Ashland Oil v. Kaufman, 181 W. Va. 728, 384 S.E.2d 173 (1989); (2) not setting aside a default judgment making the injunction permanent and awarding the employer damages attorney fees and court costs under R. Civ. P. 60(b); and (3) not conducting an evidentiary hearing and making findings of fact to determine whether state jurisdiction was preempted by petitioners' filing, after issuance of the ex parte injunction, of an NLRB complaint.
Gary Adkins and Shirley Adkins v. Anna Lee Meador, No. 23371 (W. Va. July 15, 1997) (Starcher, J.):
Reversing a declaratory judgment in an action to determine whether the plaintiff, a construction worker struck by a car while positioning barrels on an interstate highway in the course of his employment, was entitled to underinsured motorist benefits under his employer's underinsurance policy, the Court held that restriction of the employer's underinsured motorist coverage to persons "occupying", i.e., "in, upon, getting in, on, out or off", a covered vehicle is invalid as contrary to the requirements of W. Va. Code, 33-6-31(c) that underinsurance coverage include any person who "uses" the vehicle with the consent of the owner. The Court concluded that the record was not sufficient to determine whether the plaintiff was "using" the employer's vehicle at the time of the injury and remanded for further proceedings.
Stella R. Kronjaeger, individually and as Executrix of the Estate of Frank Nelson Kronjaeger v. Buckeye Union Insurance Company, a corporation, and McDonough Caperton Insurance Group, Inc., a West Virginia corporation, No. 23829 (W. Va. July 11, 1997) (Davis, J.):
Affirming, in part, and reversing, in part, summary judgment for defendant insurance companies in an action to recover underinsured motorist benefits, the Court held that (1) the circuit court erred in ruling that the defendants were not required to show prejudice resulting from plaintiffs' failure to notify them of their settlement with the tortfeasor for the full liability limits of the tortfeasor's policy in order to demonstrate a waiver of coverage under the "consent-to-settle" clause in plaintiffs' underinsured motorist policy, but (2) did not err in ruling that defendants had no affirmative duty either (a) to notify plaintiffs of the existence of underinsured motorist coverage or (b)to advise plaintiffs that they were required to obtain defendants' consent prior to settling with the tortfeasor. The Court remanded for further proceedings on the issue of whether defendants were, in fact, prejudiced by plaintiffs' failure to obtain their consent before settling and whether plaintiffs were entitled to additional underinsurance benefits under Bias v. Nationwide Mutual Insurance Company, 179 W. Va. 125, 365 S.E.2d 789 (1987).
State of West Virginia ex rel. West Virginia Fire & Casualty Company and Joe Kirtner v. Honorable Mark A. Karl, Judge of the Circuit Court of Marshall County, West Virginia, Jimmy Lee Price, and Nora Lee Price AND State of West Virginia ex rel. West Virginia Fire & Casualty Company; Chicago Insurance Company; Interstate Indemnity Company; State Farm Fire and Casualty Company; State Farm General Insurance Company; State Farm Mutual Automobile Insurance Company; The Celine Mutual Insurance Company; Republic Mutual Insurance Company; West Virginia Farmers Mutual Insurance Company and Canal Insurance Company v. Honorable John T. Madden, Judge of the Circuit Court of Marshall County, Megan Barker, Bradley Barker, and all others similarly situated, and Robert P. Fitzsimmons, Michael W. McGuane and Thomas C. Schultz, Nos. 23944 and 23986 (W. Va. May 29, 1997)(Starcher, J.):
Granting a moulded writ of prohibition in an action for unfair claims settlement practices, outrage, and fraud brought against petitioner insurance companies for failing to obtain circuit court approval of settlements of claims of injured infants, the Court held that W. Va. Code, 44-10-14, does not require court approval of a settlement in every case in which a guardian executes a settlement for an injured child and prohibited enforcement of any circuit court orders in the underlying litigation which was premised on a contrary assumption. The Court did not address discovery and bad faith issues raised in the petition on the ground that those matters should be addressed to the sound discretion of the circuit court.
Bruceton Bank, a West Virginia corporation, and Mimi Shaffer v. United States Fidelity and Guaranty Insurance Company, No. 23398 (W. Va., April 14, 1997)(McHugh, J.):
Reversing a declaratory judgment against the insurer finding coverage in the underlying lender liability action under a commercial general liability policy and a commercial umbrella liability policy, the Court held that (1) the circuit court erred in ruling that the bank's alleged breach of contract in not making a loan to the plaintiffs in the underlying action was not an "occurrence", "incident", or "accident" within the meaning of either policy so as to require the insurer to provide coverage or defend in the underlying action and (2) the insurer's duty to defend is normally tested by whether the allegations in the underlying complaint are reasonably susceptible of an interpretation that the claim may be covered by the terms of the insurance policy.
Robert Imgrund v. Philip T. Yarborough and Nationwide Mutual Insurance Co., a corporation, No. 23347 (W. Va., February 20, 1997)(Davis, J.):
Reversing a ruling that the 18 year-old-plaintiff, who was living with his parents at the time he was injured in an auto accident, was entitled to recover uninsured motorist benefits under his parents' auto insurance policy on their vehicles in addition to the uninsured motorist coverage on his own vehicle, which he was operating at the time of the accident, the Court held that an "owned but not insured" exclusion in a motor vehicle insurance policy, which excludes uninsured motorist coverage for bodily injury caused while the insured is occupying an owned-but-not-insured motor vehicle, is valid and enforceable as to amounts in excess of the minimum amount of uninsured motorist coverage required by W. Va. Code, 17D-4-2 (1979) and 33-6-31(b) (1988); to the extent that an "owned but not insured" exclusion attempts to preclude recovery of statutorily mandated uninsured motorist coverage, it is void and ineffective, consistent with Syllabus Point 2 of Bell v. State Farm Mutual Automobile Insurance Co., 157 W. Va. 623, 207 S.E.2d 147 (1974).
State of West Virginia ex rel. Gordon Lambert, President, County Commission of McDowell County, and Donald L. Hicks, Sheriff of McDowell County v. Honorable Booker T. Stephens, Judge of the Circuit Court of McDowell County, and William Bowman, Administrator, McDowell County Jail, No. 23931 (W. Va. July 17, 1997)(Workman, C. J.):
Denying as moot a petition for a writ of habeas corpus to obtain the immediate release from jail of county commissioners found to be in contempt of a circuit judge's administrative order governing parking at the courthouse, the Court ruled that circuit court's have inherent authority to require resources, such as sufficient funds for operating expenses, work space, parking space, supplies, and other material items, which are reasonably necessary for the performance of its responsibilities in the administration of justice.
Ira W. Atkinson, Jr. v. County Commission of Wood County, a political corporation; Jean Grapes, President of the County Commission; Steven Grimm, Commissioner; and Holmes R. Shaver, Commissioner, No. 23880 (W. Va. July 3, 1997)(Workman, C.J.)
Affirming the circuit court's denial of a writ of mandamus to compel the county commission to pay legal expenses of $80,000, for a magistrate who successfully defended criminal charges arising from allegations of official misconduct, the Court held that a magistrate is an employee of the State, rather than an employee of the county in which he or she was elected to office, and is, therefore, not entitled to recover legal expenses from the county under the Governmental Tort Claims and Insurance Reform Act, W. Va. Code, 29-12A-1, et seq.
State of West Virginia ex rel. Robert Junior Gains v. Emily J. Bradley, Magistrate for Wood County, No. 23841 (W. Va. March 17, 1997)(Maynard, J.):
Denying a petition for a writ of prohibition to prevent further proceedings before the respondent on domestic battery and probation revocation charges, the Court ruled that W. Va. Code, 50-4-7, which provides that a party to a magistrate court proceeding may have his case transferred to another magistrate upon filing an affidavit of bias or prejudice, does not automatically mandate such a transfer unless the affidavit is sufficient to support the allegations of bias or prejudice and that petitioner's affidavit, alleging that the magistrate had been rude and disrespectful to him in the past was not sufficient.
State ex rel. United Mine Workers of America, Local Union 1938, Dana V. Bender, Clarence D. Dixon, Dennis D. Harris, Paul G. Isner, Donald D. Lloyd, Jerry A. Marco, Mason E. Payne, Larry I. Pigot, Dwight L. Riegel, Jimmie G. Samples, James H. Shiflett, Ronald L. Thorne and Wayne a Woodall v. Honorable John L. Waters, Judge of the Circuit Court of Barbour County, and Energy Marketing Company, Inc., a West Virginia corporation, No. 23838 (W. Va., February 24, 1997)(Starcher, J.):
Granting a moulded writ of prohibition to prevent enforcement of an order enjoining petitioners from picketing their employer, the Court held that the circuit court erred in (1) issuing an ex parte preliminary injunction where the employer did not certify to the court at the time it applied for the injunction the reasons for not giving prior notice to petitioners as required by SER Ashland Oil v. Kaufman, 181 W. Va. 728, 384 S.E.2d 173 (1989); (2) not setting aside a default judgment making the injunction permanent and awarding the employer damages, attorney fees and court costs under R. Civ. P. 60(b); and (3) not conducting an evidentiary hearing and making findings of fact to determine whether state jurisdiction was preempted by petitioners' filing, after issuance of the ex parte injunction, of an NLRB complaint.
Thomas Parham, Sr., as an individual, Joyce Parham, as an individual, and Thomas Parham, Sr., as the next friend of Thomas Parham, Jr., an infant v. Horace Mann Insurance Company, a corporation, and Jerry Richmond, No. 23699 (W. Va. July 11, 1997)(Workman, C.J.):
Affirming the verdict for defendant insurer and insurance agent in a declaratory judgment action involving whether defendants failed to make a commercially reasonable offer of underinsurance motorist coverage to plaintiffs, the Court held that (1) defendants' use of preemptory strikes to remove black jurors from the panel did not violate Equal Protection where the circuit court found that counsel offered a race-neutral reason for exercising the strike and that the evidence did not show that counsel fabricated the reason and (2) the circuit court's failure to apply the test of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1989) to determine the propriety of the preemptory strike prior to removal of the juror was harmless error.
Bradley Matthew Hoover v. Thomas Blankenship, Sheriff of Nicholas County, and the County Commission of Nicholas County, No. 23875 (W. Va. May 29, 1997)(Starcher, J.):
State of West Virginia ex rel. Charlotte F. Castle v. Honorable Roger L. Perry, Judge of the Circuit Court of Logan County; Alice Dempsey and Sheldon Dempsey, husband and wife; and Sheldon Dempsey, individually and as father and next friend of Sheldon Alan Dempsey, an infant, No. 24038 (W. Va. July 11, 1997)(Workman, C.J.):
Granting a writ of prohibition to prevent enforcement of summary judgment holding petitioner absolutely liable for injuries suffered by respondents in an auto collision with an individual who had bought a car from petitioner days before the accident, holding that the clerical failure of petitioner, the seller, to write the name of the car's buyer on the certificate of title, which was otherwise properly completed, did not render the seller liable for damages caused by the negligent operation of the auto by the buyer under W. Va. Code 17A-4-9 where the purchase money had been exchanged and both a signed certificate of title and possession of the vehicle had been delivered to the buyer prior to the accident.
Mark A. Carte v. Jane L. Cline, Commissioner, Division of Motor Vehicles, State of West Virginia v. Douglas W. Royer, No. 23862 (W. Va., May 9, 1997)(Maynard, J.):
Affirming revocation of petitioner's license to drive upon an appeal to circuit court by the arresting officer, the Court held that (1) the officer who arrested petition for DUI is a party to the license revocation proceedings under W. Va. Code, 17C-5A-1, et seq., and, as such, has standing to appeal an adverse administrative decision to circuit court and (2) under W. Va. Code, 17C-5A-1a(a), revocation of a drivers' license for DUI is not predicated on the arresting officer actually observing the licensee moving, driving, or operating the motor vehicle in the officer's physical presence; it is sufficient if the surrounding circumstances indicate that the vehicle could not otherwise be located where it is unless it was driven there by the licensee.
In the Matter of Taylor B., No. 23997 (W. Va. July 14, 1997)(McHugh, J.):
Reversing an order returning a two and a half year old child abuse victim to his parents, the Court held that the circuit court erred in not terminating the parents' parental rights where, despite the parents' denial of any abuse, the undisputed medical evidence indicated that the child's injuries were consistent with "shaken baby syndrome". The Court remanded for development of a permanency plan and an award of supervised visitation.
In re: Joseph A. and Justin A., No. 23780 (W. Va. March 26, 1997)(Maynard, J.):
Affirming an order giving the Department of Health and Human Resources legal custody of the infant children for placement in long-term foster care in a child abuse and neglect proceeding, the Court held (1) evidence that the children's father inflicted a serious head injury on one of the children by throwing an ashtray at him, failed to obtain medical treatment for the child, and kept gun powder and pornographic videos in the home accessible to the children was sufficient to support a finding that the children were abused and/or neglected; (2) the circuit court did not abuse its discretion in not ordering an improvement period where the children had been previously removed from and then returned to the home on allegations that the father sexually abused his daughter, now emancipated, that the father had threatened another child, also emancipated, if he would not lie about the alleged abuse, and that supervised visitation with the father was stressful to the children; (3) the exclusion of the father from an in camera hearing at which one of the children testified was not error where the father's attorney was present throughout the interview and had an opportunity to cross-examine the child; and (4) the placement of the children with their sister and then in a foster home for the long term was the least restrictive alternative available.
State of West Virginia v. Raymond Jarvis, No. 23904 (W. Va. May 30, 1997)(Workman, C.J.):
Affirming an order denying an inmate's motion for modification of sentence based an his allegations that he was entitled to additional "good time" credit for time served as a trustee, the Court held that W. Va. Code, 17-15-4, providing good time credit for inmates who serve as trustees in county or regional jails, applies only to inmates sentenced to confinement in county or regional jails and does not apply to persons sentenced to confinement in the penitentiary but housed in county or regional jails temporarily pending transfer to the penitentiary. The Court concluded that the right of the latter class of inmates is governed exclusively by W., Va. Code, 28-5-7, which does not provide "good time" credit for time spent as a trustee.
State of West Virginia v. James Daniel Duke, No. 23905 (W. Va. June 10, 1997)(Davis, J.):
Reversing the circuit court's order revoking the probation of defendant, convicted of third-degree sexual assault and, while on probation, brandishing a weapon, for marijuana use, the Court ruled that where a circuit court places a criminal defendant on probation for an offense committed while on probation for a previous offense, the court must make clear on the record the precise nature of the subsequently imposed probationary term and held that the circuit court erred in imposing defendant's original sentence of one-to-five years on the third-degree sexual assault conviction where defendant had completed the three-year probationary term on that offense at the time of the revocation.
Henry O'Daniels, Jr., v. City of Charleston, a municipal corporation, No. 23735 (W. Va. July 15, 1997)(Starcher, J.):
Reversing the issuance of a writ of mandamus to compel the respondent city to remove fences erected by a neighboring landowner which petitioner asserted blocked travel on a city street, the Court held that because the proceedings directly affected the rights or interests of the neighboring landowner, making him an indispensable party, any order or decree issued in the absence of the such landowner was null and void, and remanded to allow the petitioner to join the neighboring landowner as a party.
Lestel Cottrill v. B. L. Ranson and Rosalie E. Ranson, his wife, and the Board of Education of Putnam County, a corporation created by West Virginia state law, No. 23374 (W. Va. July 15, 1997)(Workman, C.J.):
Affirming summary judgment in an action to determine the right of plaintiff, one of the original grantors, to repurchase property conveyed to the Board of Education for a school which was subsequently closed, the Court held that plaintiff's right to repurchase the property passed to defendants when plaintiff conveyed to them the parent tracts without reserving the right to repurchase.
Elvira Clain-Stefanelli v. Hetty E. Thompson, No. 23389 (W. Va., May 9, 1997)(Maynard, J.):
Affirming, in part, and reversing, in part, a judgment awarding plaintiff a prescriptive easement over defendant's property, the Court held that the circuit court did not err in ruling that (1) plaintiff had an eleven-foot wide prescriptive easement over defendant's property, but did err in ruling that (2) defendant had a right to erect a gate across the right-of-way in view of the fact that the easement was open and unobstructed for a period of over 100 years and (3) plaintiff could not transfer the use of the right-of-way to serve a residential development or subdivision of plaintiff's property where the such transfer would not change the character of purpose of the easement, but only the frequency of its use.
State of West Virginia ex rel. Darrell V. McGraw, Jr., v. West Virginia Ethics Commission and Robert Gould, No. 24023 (W. Va. July 16, 1997)(Starcher, J.):
Denying a writ of mandamus to compel dismissal of a complaint filed against the Attorney General with the West Virginia Ethics Commission, the Court held that the determination of whether a complaint filed with the Ethics Commission sufficiently states a violation of the ethics law is a matter within the discretion of the Ethics Commission not subject to resolution by this Court in mandamus or prohibition proceedings.
Steven P. Holsten, Administrator of the Estate of Angela Ethelmae Holsten, and Steven P. Holsten, individually v. Russell Massey, Sharon Diane Pauley, M & M Convenient Mart, the County Commission of Boone County, the Boone County Sheriff's Department, and L.L. Greene, individually and in his capacity as Deputy Sheriff of the Boone County Sheriff's Department, No. 23549 (W. Va. July 16, 1997)(McHugh, J.):
Affirming summary judgment for defendant sheriff, deputy and county commission in an action to recover damages for the death of plaintiff's decedent in an auto accident with a drunk driver, the Court held that (1) defendants' failure to investigate a prior auto accident, in which a passenger of the drunk driver had been killed, for evidence of drunk driving did not give rise to a duty to plaintiff or his decedent not owed to the general public, absent evidence of a "special relationship" between defendants and plaintiff or his decedent and (2) defendants were immune from liability under the Governmental Tort Claims and Insurance Reform Act, W. Va. Code, 29-12A-5(b).
Joseph Larry Walker v. West Virginia Ethics Commission, No. 23881 AND Joseph Larry Walker v. West Virginia Ethics Commission, No. 23890 (W. Va. July 15, 1997) (Davis, J.):
Affirming, in part, and reversing, in part, a circuit court decision dismissing one ethics charge against a state employee, but sustaining other charges, the Court held that the circuit court erred in ruling that the one-year statute of limitations for filing of a verified complaint precluded prosecution of a second charge that the employee had knowingly approved a subordinate's falsified travel expense forms where the initial verified complaint, filed within the one-year limitations period contained the same allegations and put the employee on notice as to the existence of such charge, but did not err in ruling that the Ethics Commission (1) could rely on the testimony of an unlicensed private investigator hired by the employee's co-workers, in bringing charges that the employee himself falsified travel expense forms; (2) had the authority to remand one of the charges for further proceedings by the hearing examiner and to adopt the subsequent findings of the hearing examiner; and (3) considered the evidence and issued a decision within the time periods provided by statute.
Jimmy Lee Mangus, Jr., and Richard D. Clarkson v. Arden D. Ashley, Sheriff of Kanawha County, and Kanawha County Deputy Sheriffs' Civil Service Commission AND J. W. Johnson, II v. The Civil Service Commission for Deputy Sheriffs for Kanawha County, and James C. Peterson, Kenneth Blake and William C. Porth, constituting members of the said Commission, and Arden D. Ashley, Sheriff of Kanawha County, AND M. A. Stiltner and B.J. VanMeter v. Art Ashley, Sheriff of Kanawha County, and the Kanawha County Deputy Sheriffs' Civil Service Commission, Nos. 23568, 23569,23580 (W. Va., April 11, 1997)(Starcher, J.):
Affirming denial of petitions for writs of mandamus to force a deputy sheriffs' civil service commission to cease using performance evaluations in making decisions regarding promotions and another to compel the sheriff to implement promotions subsequently withdrawn for flaws in the selection procedure, the Court held that (1) performance evaluations, along with seniority and merit as ascertained by competitive examinations, is one of the criteria by which deputy sheriff promotions are determined pursuant to W. Va. Code, 7-14-1 and 7-14-13, and (2) in the face of clear errors in the process of selecting deputy sheriffs for promotion, a sheriff may withdraw a notice of vacancies and a list of persons eligible for promotion and require that the selection process be begun again.
State of West Virginia ex rel. Bell Atlantic-West Virginia, Inc., a West Virginia corporation, and Bell Atlantic Corporation, a Delaware corporation v. Honorable Lyne Ranson, Judge of the Circuit Court of Kanawha County; E. Keith Morgan, Michael T. Sword, Daniel P. O'Connor, Jean Sanson, dba C.J.'s Auto Sales; and Doris J. Graley, individually and on behalf of all other similarly situated, No. 23942 (W. Va. July 16, 1997) (McHugh, J.):
Denying a writ of prohibition to prevent trial in a class action for to recover damages arising out of charges to consumers for the telephone companies' inside wire maintenance plan, the Court held that (1) the fact that the Public Service Commission had jurisdiction to regulate telephone utilities and the inside wire maintenance plan did not preempt the circuit court's jurisdiction to hear and decide the plaintiffs' antitrust, consumer protection, and common law claims and (2) plaintiffs made a prima facie showing that respondent parent company, a foreign corporation, had sufficient contacts with West Virginia to give the circuit court personal jurisdiction of such corporation.
McClung Investments, Inc. v. Green Valley Community Public Service District, No. 23352 (W. Va., April 11, 1997)(Maynard, J.):
Affirming a summary judgment order discharging a lien docketed against appellee's property by a public service district for payment of a $22,359 sewer fee arrearage, the Court held that the circuit court did not err in ruling that a lien for delinquent sewer fees is not exempted from the recordation requirements of W. Va. Code, 38-10C-1 and was, therefore, defeated by a previously recorded deed of trust.
SALES AND SECURED TRANSACTIONS
Fayette County National Bank v. Gary C. Lilly, et al., No. 23360 (W. Va. March 14, 1997)(Davis, J.):
Affirming summary judgment for the appellee in an action to recover the difference between the amount owed by appellants on property secured by a deed of trust and the purchase price of the property at a trustee's sale, the Court ruled that (1) a summary judgment order must set out factual findings sufficient to permit meaningful appellate review, and (2) the grantor of property sold at a foreclosure sale may not assert, as a defense in a deficiency judgment proceeding, that the property was not sold for its fair market value where the grantor has not attempted to have the sale set aside on that ground.
Cathe A., Guardian of C.E.A., an infant under the age of 18 years v. Doddridge County Board of Education, Ronald K. Nichols, Superintendent; and William J. Curran, Martha M. Devericks, James J. Dukate, Clifford L. Willis and Monzel Rex Zickefoose, Individually and as a member of the Doddridge County Board of Education, No. 23350 (W. Va. July 3, 1997)(Starcher, J.):
Affirming, in part, and reversing, in part, issuance of a writ of mandamus to compel the Board of Education to provide free alternative education to a student who had been expelled for possession of two lock-blade knives, the Court held that (1) (1) the Productive and Safe Schools Act of 1995, W. Va. Code, 18A-5-1a(g), requiring children who bring dangerous weapons to school to be removed from school for up to twelve months, is narrowly tailored to serve a compelling state interest in safe and secure schools and is not, therefore facially unconstitutional; (2) the circuit court did not err in ruling that Board could not condition a plan for alternative education on the parents paying for the cost of such instruction; (3) the State may constitutionally refuse to provide alternative state-funded educational opportunities and services to a child expelled under the Safe Schools Act only in where there is a compelling state interest in doing so, such as where providing such services would present a danger to teachers, students and other school personnel and where the child is unwilling or unable to utilize educational opportunities and services that are consistent with protecting the safety of others; and (4) the circuit court failed to consider the factors enumerated in WVEA v. Consolidated Public Retirement Board, 194 W. Va. 501, 460 S.E.2d 747 (1995), in determining plaintiff's entitlement to attorney fees. The case was remanded for reconsideration of the attorney fee issue.
Billy J. Keatley v. Mercer County Board of Education, No. 23844 (W. Va. June 19, 1997)(Davis, J.):
Affirming denial of petitioner's grievance arising from the Board's hiring of another teacher for an assistant principal's position, the Court ruled, inter alia, that the successful candidate's lack of a professional administrative certificate, required under W. Va. Code, 18A-4-7a, at the time the hiring decision was made did invalidate such decision where the successful candidate, although not having physical possession of the certificate, had completed the requirements for certification at the time of the interview or date of hiring and was waiting for the certification results and received his certification prior to starting his duties.
State of West Virginia ex rel. Nicholas P. Serdich v. Preston County Board of Education, No. 23536 (W. Va. May 30, 1997)(Maynard, J.):
Reversing the circuit court's denial of a writ of mandamus to compel the Board of Education to appoint him to a teaching position, the Court held that the circuit court erred in ruling that the absence of a teacher, who advised the Board that she expected to be absent for medical reasons for the next eighty days, did not create an "opening" in her position so as to trigger the preferred recall provisions of W. Va. Code, 18A-4-7a and 18A-2-2, and remanded for a hearing on whether the opening had become permanent by the absent teacher's failure to return to work within one year. The Court further determined that appellant was not entitled to back pay or attorney fees.
P.T.P., IV, an infant by his next friends and parents, P.T.P., III, and B.P. v. Board of Education of the County of Jefferson, and Gerry Sokol, No. 23460 (W. Va. May 30, 1997)(Maynard, J.):
Affirming dismissal of plaintiffs' complaint alleging the Board of Education violated the Individuals with Disabilities Act (IDEA), 20 U.S.C. §§ 1400 to 1462 and the West Virginia Human Rights Act (WVHRA), W. Va. Code, 5-11-1 et seq., by not affording a special needs child an independent educational evaluation, the Court ruled that neither the IDEA nor the WVHRA requires a board of education to afford a student such an evaluation. The Court also noted, however, that because the Board had failed to appeal a hearing examiner's findings, following the filing of an IDEA administrative complaint, that the parties had contracted for the provision of such services, such contract was enforceable against the Board, and remanded for further proceedings on that issue and on the appellants' entitlement to costs and attorney fees.
State of West Virginia ex rel. B. F. Smith, Chief, Office of Waste Management, West Virginia Division of Environmental Protection v. Kermit Lumber & Pressure Treating Co., duly authorized corporation, and Harrison Jude, an individual, jointly and separately, No. 23831 (W. Va. June 24, 1997):
Reversing the dismissal of the State's action to compel defendants below to clean up hazardous waste at their business site and seeking civil penalties and damages from defendants for "dilatory and non-responsive acts, the Court held that pursuant to W. Va. Code, 55-2-19, the common law doctrine of nullum tempus occurrit regi did not prevent the statute of limitations from running against the State; (2) the one-year statute of limitations provided in W. Va. Code 55-2-12(c) applies to actions brought under the Hazardous Waste Management Act, W. Va. Code, 22-18-1, et seq. and the Water Pollution Control Act, W. Va. Code, 22-11-1, et seq. and the common law theory of public nuisance; and (3) the circuit court erred in ruling that the one-year statute of limitations on the State's claims had expired where pollution continued to exist at the site due to defendants' failure to clean up the original spills.
Charles McKinney and Sandra McKinney v. Fairchild International, Inc., No. 23467 (W. Va., May 14, 1997)(Starcher, J.):
Affirming, in part, and reversing, in part, summary judgment for defendant in a product liability action arising from an injury to plaintiff in Kentucky while using a mining machine manufactured in West Virginia, the Court held that the circuit court (1) erred in not applying the West Virginia savings statute, W. Va. Code, 55-2-18, to determine whether the action, filed in state court after dismissal of a prior timely action in federal court for lack of jurisdiction, even though the Kentucky statute of limitations applied to determine the timeliness of the original action under the West Virginia borrowing statute, W. Va. Code, 55-2A-2, but (2) did not err in finding that the Kentucky discovery rule did not toll the running of the Kentucky one-year statute of limitations on such claims.
Brenda Pennington, Executrix of the Estate of William Pennington v. Robert S. Bear, D.O.; Bluefield Regional Medical Center, Inc., a non-profit West Virginia corporation; Bluefield Health Systems, Inc., a non-profit West Virginia corporation; and Professional Imaging, Inc., a West Virginia corporation, No. 23869 (W. Va., May 9, 1997)(Maynard, J.):
Affirming summary judgment for defendant radiology service provider (contractor) in a wrongful death action, the Court held that (1) the circuit court did not err in ruling that any fraud on the part of defendant hospital in concealing from plaintiff a lung scan which, if properly read, would have revealed a high probability of the pulmonary embolus which led to decedent's death, could not be imputed to the contractor so as to toll the two-year statute of limitations on such claims under W. Va. Code, 55-7-6, solely on the basis of privity of contract in the absence of evidence that the contractor participated in or was aware of such fraudulent conduct; (2) the court did not err in conducting an evidentiary hearing to determine if there was a genuine issue of material fact for trial as to evidence of fraudulent concealment; and (3) entry of summary judgment was not premature.
Jerry A. Vorholt v. One Valley Bank (formerly the Kanawha Valley Bank, N.A.),One Valley Bank, a National Banking Association (formerly the Kanawha Valley Bank), Trustee of the Ansel F. Vorholt Trust, et al., No. 23589 (W. Va. March 28, 1997)(Maynard, J.):
Affirming summary judgment for the trustee in an action brought by the testator's adopted son for the trustee's failure to include him in the distribution of the corpus of a testamentary trust, the Court held that the appellant's 1992 action was barred by the "catch-all" one- or two-year statutes of limitations contained in W. Va. Code, 55-2-12, which began running in 1970 when the trust closed.
Timothy Gaither v. City Hospital, Inc., No. 23401 (W. Va., February 24, 1997)(Starcher, J.):
Reversing summary judgment for defendant hospital in a medical malpractice action in which plaintiff alleged that defendant's delay in transferring him to a shock trauma unit following a 1989 motorcycle accident resulted in amputation of his leg, the Court held that the circuit court erred in ruling that plaintiff's civil action, filed in 1993, was barred by the two-year statute of limitations applicable to such actions under W. Va. Code, 55-7B-4, where, although plaintiff knew of his injury (i.e., that his leg had been amputated) in 1989, there was a factual issue as to whether he knew or should have known that the injury may have been attributable to defendant, notwithstanding that defendant did nothing to prevent plaintiff from learning of its possible negligence. The Court characterized the discovery rule in tort actions as follows: Unless there is a clear statutory prohibition to the contrary, the statute of limitations begins to run when the plaintiff, knows, or by the exercise of reasonable diligence should know, (1) that plaintiff has been injured, (2) the identity of the entity who owed plaintiff a duty to act with due care and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury.
Katherine Day Perdue and Bobby Ray Perdue v. Polly Vera Hess, No. 23745 (W. Va., February 21, 1997)(Davis, J.):
Answering a certified question in the negative, the Court ruled that an attorney's failure to file a personal injury claim within two years does not toll the limitations period under W. Va. Code, 55-2-12 (1959), even for the attorney's excusable neglect, where the failure to file does not correspond with a statutory exception to the statute of limitations.
Provident Life and Accident Insurance Company, a corporation v. Katherine Bennett, a minor, Temperance Bennett, a minor, S. D. Hardin, Trustee, McDowell County National Bank, and Michael Bennett, an individual, No. 23425 (W. Va., February 21, 1997)(Davis, J.):
Reversing summary judgment for plaintiff health insurer asserting subrogation rights to defendats' settlement with an automobile liability carrier for medicalpayments, the Court ruled inter alia, that the circuit curt erred in ruling that the "made-whole" doctrineof Kittle v. Icard, 185 W. Va. 126, 405 S.E.2d 456 (199) was not applicable and that when applying the "mde-whole" doctrine, it is incumbent on the circuit court to nsider: 1) the ability of parties to prove liability; 2) the coparative fault of all parties involved in the accident; 3) the coplexity of the legal and medical issues; 4) future medicalexpenses; 5) nature of injuries; and 6) the assets or lack of asets available above and beyond the insurance policy.
Shawnee Bank, Inc., a Wst Virginia banking corporation, successor by merger to 2nd Aveue Bank of South Charleston v. James H. Paige, III, Secretary of the Department of Tax and Revenue of the State of West Virginia, No. 23816 (W. Va. May 29, 1997)(Davis, J.):
Affirming a Tax Commissioner's ruling disallowing appellant bank exclusions and deductions from business and occupation (B&O), the Court ruled that (1) interest earned by appellant from investments in securities issued by the Federal National Mortgage Association is not excludable from gross income as "interest received on the obligations of the United States" under W. Va. Code, 11-13-2k [1983] and (2) appellant's "bad debt" deduction under W. Va. Code, 11-13-2k does not include the principal, but is limited tot he accrued interest on such debt for which B&O tax has been paid.
Ward W. Keesecker, II v. Walter M. Bird, Committee for Emily Keesecker, and Arch Steiner, Committee for Emily Keesecker, No. 23386 (W. Va. July 14, 1997)(Starcher, J.):
Affirming, in part, and reversing, in part, a summary judgment for defendant personal representatives of decedent's estate in an action by plaintiff for waste of a remainderman's interest in real an personal property, the Court held that (1) the statute of limitations barred claims against the personal representative from 1981 to 1986; (2) the circuit court erred in ruling that the personal representative appointed thereafter was not a proper party to the litigation under W. Va.R.Civ.P. 17(a), such rule applying only to the parties prosecuting claims and not to parties defending against such claims; and (3) the issue of whether the remaining defendant had a duty to manage the subject property is to be determined under the law of Virginia, the state in which defendant's committeeship was established, but the determination of how the defendant was to manage the property is to be resolved by West Virginia law.
Thelma Lea Blake and Jerry Lane Blake, her husband, v. John Skidmore Truck Stop, Inc., a West Virginia corporation, No. 23400 (W. Va. July 17, 1997)(Workman, C.J.):
Reversing a directed verdict for defendant employer in a deliberate intent action to recover damages for injuries plaintiff employee suffered when she was stabbed and beaten by an armed robber at work, the Court held that the circuit court erred in ruling that, as a matter of law, an employee injured as a result of criminal acts of a third party can never give rise to a claim for damages under W. Va. Code, 23-4-2, and remanded for a new trial.
Roberta Banks Bush v. Andrew N. Richardson, Commissioner, West Virginia Bureau of Employment Programs, Division of Workers' Compensation, No. 23702 (W. Va. March 21, 1997)(McHugh, J.):
Affirming a declaratory judgment ruling that the Workers' Compensation Division to enforce a statutory subrogation lien against a third party's settlement with claimant in a civil action against arising out of the same incident as the claim for benefits, the Court ruled that under W. Va. Code, 23-2A-1, the Workers' Compensation Division is entitled to subrogation, up to fifty percent of medical benefits paid, regardless of whether claimant was "made whole" by the settlement within the meaning of Kittle v. Icard, 185 W. Va. 126, 405 S.E.2d 456 (1991).
Etta Lee Conley v. Workers Compensation Division and Hercules, Inc., No. 23677 (W. Va., February 20, 1997)(Davis, J.):
Reversing the Workers' Compensation Appeal Board's ruling that the claimant had not sustained a compensable psychiatric injury arising from verbal abuse and harassment by co-workers, the Court ruled (1) W. Va. Code, 23-4-1f (1993), declaring psychiatric impairments not arising from or resulting in physical injury not compensable, may not be applied retroactively to bar mental-mental claims filed prior to the effective date of the statute; (2) an order of the Workers' Compensation Appeal Board which does not affirm a ruling by the Workers' Compensation Office of Judges must set out adequate findings that support the decision; and (3) failure of the Workers' Compensation Appeal Board to review rulings of the Workers' Compensation Office of Judges under the standard set out in W. Va. Code, 23-5-12(b)(1995), is reversible error.