Summaries of the final majority opinions from the January 2003 term of court not previously covered are now posted on this recent opinions page. For easy review by practitioners and others, the summaries are also posted according to three topical groups: civil, criminal and family. Full summaries of September 2003 opinions are coming soon.

IN RE: STEVEN TYLER R., No. 30654 (DAVIS, J.)(July 1, 2003). Affirming an order of the Circuit Court of Raleigh County that terminated parental rights after a finding of abuse and neglect and required payment of child support post-termination. Holding that the lower court was within its statutorily granted jurisdiction to continue the father's child support obligation pursuant to W. Va. Code 49-6-5(a)(6) and 49-6-6.

IN RE: FRANCES J.A.S., et al., Nos. 30909 and 30910 (Per Curiam)(June 18, 2003). Reversing an order of the Circuit Court of Preston County placing the custody of two children with their mother and step-father during a dispositional improvement period.

NICHOLS v. PRITT, COMM'R, No. 30906 (Per Curiam)(July 3, 2003). Reversing an order of the Circuit Court of Kanawha County that denied the appellant's requests for relief in prohibition and mandamus. Holding that the lower court erred in refusing to compel the Commissioner to afford the appellant an administrative hearing on the revocation of his driver's license, where both the appellant and the arresting officer had failed to appear at a previously scheduled hearing.

ABSURE, INC. v. HUFFMAN, No. 31061 (Per Curiam)(McGraw, J., dissenting)(June 19, 2003). Affirming a grant of summary judgment entered in the Circuit Court of Ohio County in favor of a title examination company on the grounds of unjust enrichment.

STATE v. PARSONS, No. 30693 (Per Curiam)(Starcher, C.J., Albright, J., dissenting)(June 27, 2003). Affirming a conviction for 21 counts of third degree sexual assault obtained in the Circuit Court of Kanawha County. Rejecting numerous assignments of error, including erroneous application of rape shield statute, improper admission of 404(b) evidence, timeliness of incidents admitted, "shotgunning" the evidence, improper petit jury, judge's encounter with a witness, etc.

STATE v. KEENAN, No. 30851 (Per Curiam)(June 19, 2003). Reversing a conviction for voluntary manslaughter obtained in the Circuit Court of Fayette County. Holding that the State's failure to respond properly to a discovery request involving a forensic examination effectively misled the defense in preparing its entire case, thereby warranting a new trial. Affirming lower court's decision to deny defendant's request to disqualify the prosecutor's office.

SER CANTERBURY v. BLAKE, No. 31150 (Per Curiam)(June 23, 2003). Granting a writ of prohibition to prevent trial on a reindictment for violations of WV Code 61-3-51. Holding that the penal statute at issue is void because it meets all three elements required to establish that the statute has fallen into desuetude.

SER BAILEY v. DIV. of CORRECTIONS, et al., No. 31148 (Per Curiam)(June 19, 2003). Granting a writ of mandamus to compel the Division of Corrections to limit the maximum number of days of good time credit revoked to the number of days actually earned when the penalty is imposed. Holding that prospective revocation of good time credit contravenes the meaning of the statutory provisions at issue.

HOLLEN v. HATHAWAY ELECTRIC, INC., No. 30681 (Per Curiam)(McGraw, J., concurring in part and dissenting in part)(June 26, 2003). Reversing an order of the Circuit Court of Upshur County granting an award of attorney fees to the plaintiff in a suit for lost vacation pay that the employer settled the day of trial for the employee's initial demand. Holding that counsel was entitled to compensation for the full number of hours worked, at one hundred thirty dollars per hour--a higher rate than the one hundred dollar rate set by the lower court--but lower than the two hundred per hour requested. Remanding for calculation and award of fees for purpose of the appeal.

McCLUNG v. NICHOLAS COUNTY BD. OF EDUC., No. 31032 (Per Curiam)(Davis, J., dissenting)(July 3, 2003). Reversing an order of the Circuit Court of Kanawha County that affirmed a grievance board decision that a substitute bus driver was properly awarded a summer position under WV Code 18-5-9, because he held the same position during the previous summer. Holding that the former employee retired from regular employment and therefore did not retain any of the seniority rights he had accumulated in that position. Under these unique facts, the position should have been awarded to the appellant on the basis of seniority.

REBECCA LYNN C. v. MICHAEL JOSEPH B., No. 30411 (Per Curiam)(July 1, 2003). On rehearing, reversing an order of the Circuit Court of Ohio County that dismissed a mother's petition to modify an order that had been entered in a paternity action. Holding that a lump-sum child support obligation agreement should be set aside, and remanding for further proceedings, including appointment of a guardian ad litem and recalculation of child support.

SER SILVER v. WILKES, No. 31006 (MAYNARD, J.)(June 27, 2003). Granting a writ of mandamus to compel the circuit court to adjudicate an original jurisdiction petition against the family court. Holding that family courts are courts of limited jurisdiction subject to both the appellate and original jurisdiction of the circuit courts. Further holding that circuit courts are the preferred courts of first resort to hear original jurisdiction challenges directed toward the family court.

BRALEY v. HUNT, No. 30849 (Per Curiam)(Davis, J., dissenting)(Maynard, J., dissenting)(June 25, 2003). Granting mixed relief from a final order entered in the Circuit Court of Clay County. Reversing the lower court's order that a trust fund be established, and affirming the lower court's order that spousal support continue. Remanding other issues for further consideration.

DELAPP v. DELAPP, No. 31043 (Per Curiam)(June 19, 2003). Reversing an order of the Circuit Court of Monongalia County that denied a Rule 60(b) motion to set aside the circuit court's order. Holding that the circuit court erred in finding that it lacked authority to grant relief from its final order because the appellant failed to file a timely petition for appeal from a FLM recommended order.

McGEE v. McGEE, No. 30965 (ALBRIGHT, J.)(June 17, 2003). Granting mixed relief from an order of the Circuit Court of Mineral County that applied a three percent COLA to appellant's retirement, thereby substantially affecting her equitable distribution rights, and that refused appellant's request for attorney fees. Setting forth guidelines for the valuation of retirement benefits using the immediate offset/present value method and the deferred distribution method. Holding that the lower court erred in applying the COLA. Affirming denial of attorney fees.

SER DRAKE v. HILL, No. 31112 (Per Curiam)(June 17, 2003). Granting a writ of prohibition to prevent denial of extension of time to appeal a family court order sought by an attorney who was engaged in legislative interim meetings as a member of the West Virginia Legislature. Holding that the exemption for legislators set forth in WV Code 4-1-17(a) is not restricted to court appearances, and because the petitioner's attorney was performing his legislative duties during more than a third of the appeal period at issue, the lower court abused its discretion by refusing to grant a three-day extension of time.

PELLICCIONI v. PELLICCIONI, No. 30630 (Per Curiam)(June 17, 2003). Granting mixed relief from an order of the Circuit Court of Monongalia County that adopted a family law master's recommendation to deny the appellant an extension of rehabilitative alimony and an increase in child support.

LOVELL v. STATE FARM, et al., No. 31059 (Per Curiam)(June 27, 2003). Affirming a grant of summary judgment in favor of insurer entered in the Circuit Court of Kanawha County. Holding that plaintiff failed to show an issue of material fact regarding a claim that the defendants sought to prohibit a witness from testifying in a bad faith action.

STATE FARM v. JOSLIN AND WILKINSON, No. 31035 (STARCHER, C.J.)(McGraw, J., dissenting)(July 3, 2003). Reversing orders of the Circuit Court of Ohio County that allowed two insureds to stack underinsured motorist coverage under five insurance policies, despite the presence of anti-stacking language in the policies. Holding that the phrase "bargained for discount" in WV Code 33-6-31(b) allows an insurance company to unilaterally give an insured a multi-car discount as consideration for the enforcement of anti-stacking language in an automobile insurance policy. Further holding that the circuit court erred in allowing the insured to recover the "per accident" limits of coverage rather than the "per person" limits. Remanding for further proceedings.

SER BELL & BANDS, PLLC v. KAUFMAN, et al., No. 31265 (Per Curiam)(June 30, 2003). Denying a writ of prohibition sought by a law firm to prevent enforcement of an order quashing an attorney's fee lien. Holding that the lower court exhaustively attempted to follow the dictates of Kopelman v. Collins, and was within the confines of a related order entered in another circuit court in a pending fee dispute.

BROOKS v. ISINGHOOD, et al., No. 30695 (STARCHER, C.J.)(June 27, 2003). Reversing an order of the Circuit Court of Hancock County that dismissed an amended complaint as having been filed after the expiration of the statute of limitation. Holding that under Rule 15 of the Rules of Civil Procedure, the amended complaint relates back to the date the original complaint was filed, and thereby avoids the effects of the statute of limitation. Setting forth requirements for the application of Rule 15. Modifying syllabus of Maxwell v. Eastern Assoc. Coal Corp., 183 W. Va. 70, 394 S.E.2d 54 (1990).

SER FARBER v. MAZZONE, No. 31277 (Per Curiam)(June 26, 2003). Granting a writ of prohibition to prevent the lower court from asserting jurisdiction over him in the underlying professional liability action and to quash certain requests for records. Holding that attempted service of process by certified mail with restricted delivery, where a temporary secretary signed for delivery rather than Mr. Farber, constituted defective service of process. Lower court therefore lacked jurisdiction to enter default judgment.

BURKEY v. BOARD OF ZONING APPEALS OF THE CITY OF MOUNDSVILLE, et al., No. 31060 (Per Curiam)(Albright, J., concurring)(July 2, 2003). Reversing an order of the Circuit Court of Marshall County that affirmed a ruling of the Board of Zoning Appeals that granted a variance to allow the appellees to sell beer. Holding that the Board of Zoning Appeals ruling failed to set forth any factual or legal basis concerning the variance, thereby precluding the circuit court from conducting a proper judicial review. Variance set aside.

TRUMBLE, et al. v. GMAC MORTGAGE, et al., No. 30902 (Per Curiam)(McGraw, J., dissenting)(July 7, 2003). Answering certified questions from the United States Bankruptcy Court for the Northern District of West Virginia, regarding the priority of the parties in a bankruptcy action when the instrument meant to secure the priority interest is improperly acknowledged. Specifically, individuals who did not have authority to acknowledge documents in West Virginia notarized the deeds of trust in West Virginia that were then recorded in West Virginia. Holding that resolution of the priority interest depends on whether an improper benefit was obtained by the notary or any party to the instrument, as well as whether any harm flowed from the transaction. If neither improper benefit nor harm flowed from the transaction, then the imperfectly acknowledged deed of trust provides constructive notice under West Virginia law for the purpose of discerning priority in a bankruptcy action.

LOGUE v. FLANAGAN, No. 30741 (Per Curiam)(June 17, 2003). Reversing a grant of summary judgment entered in the Circuit Court of Mineral County in favor of the defendants in a suit by buyers of a tract of land who alleged that the defendants failed to disclose a defective septic system. Holding that the "as-is" purchase contract does not prohibit a valid cause of action against a seller for failure to disclose a defective condition, and therefore summary judgment was premature.

SER LEUNG v. SANDERS, et al., No. 31319 (Per Curiam)(McGraw, J., dissenting)(Albright, J., concurring in part and dissenting in part)(July 2, 2003). Granting a moulded writ of prohibition to prevent enforcement of an order denying the defendant in a medical negligence action leave to file a third-party complaint against another doctor for indemnification and/or contribution. Holding that the proposed third-party complaint met the minimal requirements of Rule 8(a), it cannot be "obviously unmeritorious" as required for refusal to file under Rule 14(a).

WAYS, et al. v. IMATION ENTERPRISES CORP., et al., No. 31062 (Per Curiam)(McGraw, J., dissenting)(July 7, 2003). Affirming an order of the Circuit Court of Jefferson County that denied a motion for class certification by several former employees in claims for breach of contract and employment discrimination. Holding that the lower court correctly determined that the appellants failed to meet the requirements of Rule 23.

IN RE: WEST VIRGINIA REZULIN LITIGATION AND SER McCAFFERY, et al. v. HUTCHINSON, et al., Nos. 30958 and 30963 (STARCHER, C.J.)(Davis, J., disqualified)(July 3, 2003). Reversing an order of the Circuit Court of Raleigh County, acting as a judge of the Mass Litigation Panel, that denied a motion to certify a class action for users of an allegedly defective prescription drug. Holding that the lower court erred in failing to certify the class, and erred in conducting a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Setting forth several new syllabus points relating to the application of Rule 23 of the Rules of Civil Procedure. Also holding that a circuit court has equitable powers to establish and administer a court-supervised medical monitoring program.

SER WEIRTON MEDICAL CTR., et al. v. MAZZONE, et al., No. 31147 (Per Curiam)(McGraw, J., dissenting) Granting a writ of prohibition to prevent enforcement of an order limiting the testimony of a defendant's expert witness in a medical negligence action. The expert had applied a somewhat novel method of testing a cell for viruses that left the cell intact. Holding that the lower court erred in excluding the testimony, and that the question of whether the expert's testimony is correct is one for the jury.

HANNAH, et al. v. HEETER, et al., No. 30692 (MAYNARD, J.)(June 30, 2003). Answering certified questions arising from the Circuit Court of Logan County. Holding that a stand alone tort for spoliation of evidence is recognized when the spoliation is the result of the negligence of a party to a civil action. Holding further that a cause of action for negligent spoliation also lies against a third party, where that third party has a special duty to preserve the evidence. Holding further that a cause of action for intentional spoliation lies against a party to an action and a third party. Setting forth the parameters of the duty to preserve evidence as well as the elements of the various torts.

SER BROOKS v. ZAKAIB, No. 31042 (DAVIS, J.)(McGraw, J., dissenting)(Albright, J., concurring)(June 23, 2003). Granting a moulded writ of prohibition to prevent enforcement of an order entered in the Circuit Court of Kanawha County sealing certain peer review documents obtained from the Circuit Court of Grant County pursuant to a Freedom of Information Act request. Holding that WV Code 30-3C-3 makes plain that peer review documents can lose confidentiality protection if the information is available from the original source or confidentiality has been waived, and also that a court may protect such materials by entry of a protective order. Remanding for further proceedings to determine whether (1) the peer review documents contained in the Grant County action were either available from the orginal source or not protected as the result of a waiver and (2) the peer review documents were sealed by the Grant County Circuit Court.

RYAN v. RICKMAN, No. 30897 (Per Curiam)(June 19, 2003). Affirming a grant of summary judgment entered in the Circuit Court of Monongalia County against the administratrix of an estate. Holding that the lower court correctly decided that no factual issues were in dispute regarding whether the testator was the appelleee's biological father, and that the lower court was correct to reject the defenses of laches, waiver and estoppel, and further rejecting the defense of equitable estoppel.

McDAVID v. UNITED STATES OF AMERICA, No. 30740 (STARCHER, C.J.)(Maynard, J., dissenting)(July 3, 2003). Answering certified question from the United States District Court for the Southern District of West Virginia regarding a wrongful death action. Holding that under the wrongful death act, WV Code 55-7-6, a jury's verdict may include damages for the decedent's pain and suffering endured between the time of injury and the time of death, where the injury resulted in death but the decedent did not institute an action for personal injury prior to his or her death. To award damages for pain and suffering, there must be evidence of conscious pain and suffering of the decedent prior to death. Where death is instantaneous, or where there is no evidence that the decedent consciously perceived pain and suffering, no damages for pain and suffering are allowed.