ACKNOWLEDGMENTS

William E. Galloway v. Rose Ann Cinello, No. 21226 (W. Va. October 23, 1992) (Miller, J.): 188 W.Va. 266, 423 S.E.2d 875:

Where attorney improperly acted as both notary and trustee on a deed of trust, the Court held (1) a notary with a disqualifying interest may not legally perform, under W. Va. Code § 29C-3-102, any notarial act in connection with the transaction; (2) to determine whether a notary's disqualifying interest should act to void the instrument acknowledged, a court should consider 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, overruling Tavenner v. Barrett, 21 W. Va. 656 (1883); (3) once it is shown that actual prejudice, unfair dealing, or undue advantage has resulted from a notary's disqualifying interest in an instrument, the burden shifts to the notary to demonstrate than no improper benefit was obtained and no harm occurred as the result of the acknowledgment; and (4) a notary is liable to persons involved, under W. Va. Code § 29C-6-101, for all damages proximately caused by the notary's "official misconduct," which means the unauthorized, unlawful, abusive, negligent, reckless, or injurious exercise of the power or authority of a notary.

ADMINISTRATION OF ESTATES

Roy Lee McClure and Mary Frances McClure, his wife v. Lu Ann Dotson and Lu Ann Dotson McClure, Administratrix of the Estate of James Edward McClure,and Kansas City Life Company, Inc., a corporation, No. 19777 (W. Va. March 15, 1991) (Miller, C.J.): 184 W.Va. 649, 403 S.E.2d 197:

Where decedent's parents sought to disqualify daughter-in-law, whom they suspected was responsible for their son's death, from administering their son's estate, the Court held that the county commission has jurisdiction to determine the propriety of appointments of personal representatives, guardians, committees, and curators under W. Va. Code § 44-1-4, and its action is conclusively presumed to have been proper in all collateral proceedings. On the other hand, the Court held that a personal representative may be removed by a circuit court for cause where it is shown that such representative acted in violation of his or her fiduciary duties.

ADMINISTRATIVE

State of West Virginia ex rel. Michael S. White v. Michael Todt, Administrator, William R. Sharpe, Jr., Hospital; Ted Johnson, Interstate Compact Administrator, West Virginia Department of Health and Human Resources, No. 23271 (W. Va. July 8, 1996) (McHugh, C.J.):

Affirming the transfer of a person under involuntary commitment in Nebraska, but ordering the Administrator of the Interstate Compact on Mental Health to promulgate rules and regulations implementing the statute governing detention of escaped mental patients, the Court held that due process requires that laws provide explicit standards for those who apply them in order to prevent their arbitrary and discriminatory enforcement.

West Virginia Health Care Cost Review Authority v. Boone Memorial Hospital, No. 23035 (W. Va. May 17, 1996) (Cleckley, J.):

Affirming a circuit court ruling upholding an agency's determination regarding the necessity of administrative approval of a hospital's purchase of certain equipment, the Court held (1) once an administrative regulation is legislatively approved, it has the force and effect of statute, entitling it to controlling weight unless the promulgating agency exceeded its constitutional or statutory authority or was arbitrary or capricious; (2) if the language of a regulation is clear and within the authority of the enacting body, courts must apply and not construe the regulation; and (3) even where there is a conflict between a regulation and a statute, such conflict will be judicially resolved using ordinary canons of interpretation.

Michael McComas, Winifred Andrews, and Mary Blackwell v. Board of Education of Fayette County; Philip J. Tissue, President; W. Jack Flint, Ralph L. Parks, Daniel E. Wright, and Jeanne M. Young, No. 23291 (W. Va. May 17, 1996) (Cleckley, J.):

Affirming a judgment overturning a school board's decision to consolidate several schools, the Court held (1) proof of intent to violate the Open Governmental Proceedings Act, W. Va. Code § 6-9A-1, et seq., is not required; (2) in determining whether allegedly informal, private conversations are outside the provisions of the Open Governmental Proceedings Act, courts should focus on whether exclusion of the public from such conversations undermined the fundamental purposes of the Act; and (3) a planned meeting among a quorum of a school board to gather, review, or discuss information relevant to an issue before the board must be public, and if it is not, its conduct violates the Open Governmental Proceedings Act, W. Va. Code § 6-9A-3.

Appalachian Power Company, et al. v. State Tax Department of West Virginia and Charles O. Lorensen, State Tax Commissioner of West Virginia, No. 22795 (W. Va. December 8, 1995): 195 W.Va. 573, 466 S.E.2d 424:

Affirming the tax department's interpretation of a statute regarding the deductibility of company use and line loss, the Court held (1) appellate review of the interpretation of a statute or administrative rule or regulation is to be performed de novo; (2) judicial review of an interpretative rule of an administrative agency is nondeferential; (3) judicial review of a legislative rule of an administrative agency is two-pronged: (i) if the intention of the legislative branch is clear from a review of the applicable statutes, no deference is granted to the agency's position, which can be upheld only if it conforms to the legislative intent or (ii) if the intention of the legislative branch is not clear from a review of the applicable statutes, substantial deference is granted to the agency's position, which can be invalidated only if the agency has exceeded its constitutional or statutory authority or has acted in an arbitrary and capricious manner.

Shakuntala Modi, M.D. v. West Virginia Board of Medicine, No. 22792 (W. Va. November 17, 1995) (Albright, J.): 195 W.Va. 230, 465 S.E.2d 230:

Affirming an order that invalidated the imposition of professional discipline by the board of medicine where such order deviated from the findings, conclusions, and recommendations of the hearing examiner used by the board, the Court held that where an administrative agency has conducted a contested hearing through a hearing examiner or an administrative law judge, it must give detailed reasons in its decision for departure from the findings, conclusions, and recommendations of the hearing examiner or administrative law judge, particularly where the agency is basing its decision on economic, scientific, or other technical data within the agency's expertise or where the agency has not heard or received the evidence from which it is rendering different findings or conclusions.

State of West Virginia ex rel. Laura Meadows and Danny Martin v. Ken Hechler, Secretary of State of West Virginia; Earl Ray Tomblin, President of the Senate of West Virginia; and Robert C. Chambers, Speaker of the House of Delegates of West Virginia, No. 22875 (W. Va. July 19, 1995) (Workman, J.): 195 W.Va. 11, 462 S.E.2d 586:

Invalidating W. Va. Code § 29A-3-12(b), which permitted legislative veto of proposed administrative regulations where, despite federal statute and federal court order, the Legislature failed to approve or reject proposed nursing home regulations, the Court held such statute to violate W. Va. Const. art. V, § 1, by impermissibly encroaching upon the executive branch's obligation to enforce the law.

Wetzel County Solid Waste Authority, etc., et al. v. West Virginia Division of Natural Resources, etc., et al., and West Virginia Division of Environmental Protection, and its director, David Callaghan; and Pasquale N. Mascaro, President and Owner of Lackawanna Transport Company, No. 22778 (W. Va. July 14, 1995) (McHugh, C.J.): 195 W.Va. 1, 462 S.E.2d 349:

Rejecting numerous challenges to imposition of a solid waste assessment fee on landfill operators, the Court held (1) the solid waste assessment fee authorized by W. Va. Code § 7-5-22 is a regulatory fee rather than a tax since revenue from the fee is used for the sole purpose of defraying the costs of the administration of duties imposed upon the county or regional solid waste authorities and (2) because the imposition of a solid waste assessment fee is rationally related to the legitimate statute purpose of defraying the costs of regional or county solid waste authorities and their solid waste programs in a non-arbitrary or discriminatory manner, the equal protection and due process rights found in W. Va. Const. art. III, § 1 are not violated.

G. Frank Keen, et al. v. William Maxey, in his official capacity as Director, West Virginia Division of Forestry, and Coastal Lumber, Inc., No. 22591 (W. Va. March 24, 1995) (Neely, C.J.): 193 W.Va. 423, 456 S.E.2d 550:

Affirming an order permitting the sale of timber in Kumbrabow State Forest by the division of forestry, the Court held that W. Va. Code §§ 20-1-7(13) and 19-1A-1, et seq., clearly and unambiguously grant authority to the division of forestry to contract for the sale of timber, with the written approval of the governor, so long as such sale comports with the overall sound management of the forest.

Guy R. Hill v. Jane L. Cline, Commissioner, and the West Virginia Department of Motor Vehicles, No. 22080 (W. Va. March 24, 1995) (Neely, C.J.): 193 W.Va. 436, 457 S.E.2d 113:

Affirming a DUI revocation where a traffic stop was instituted based upon a complaint by the driver's girlfriend, the Court reaffirmed its recent holding in State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994), that whether there is reasonable suspicion depends upon the totality of the circumstances, which includes both the quantity and quality of the information known by police.

In re: Petition of Chester Snuffer for an Appeal of a Final Order of the Division of Natural Resources that Revokes Hunting and Fishing Privileges for Five Years, No. 22479 (W. Va. March 24, 1995) (Fox, J.): 193 W.Va. 412, 456 S.E.2d 493:

Reinstating an administrative order revoking a hunting and fishing license, the Court held that, pursuant W. Va. Code § 20-2-38, the director of the division of natural resources may, within his or her discretion, refuse to issue or revoke a hunting or fishing license for "cause," which includes not only the violation of specific hunting and fishing regulations, but other reasons.

Barbara L. Vest v. Board of Education of the County of Nicholas, No. 22547 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 222, 455 S.E.2d 781:

In a certified question proceeding involving the authority of the education and state employees grievance board to hear discrimination claims and the preclusive effect of any board decision on such claims, the Court held that (1) although the grievance board does not have authority to determine liability under the Human Rights Act, it has authority to grant relief to employees for "discrimination," "favoritism," and "harassment," as those terms are defined in W. Va. Code § 18-29-2, in a manner consistent with the provisions of the Human Rights Act; (2) except where provided by statute, administrative adjudication does not have preclusive effect unless the decision was rendered pursuant to specific statutory authority, the agency's procedures were substantially similar to court procedures, and the issues litigated were identical; and (3) a civil action filed pursuant to the Human Rights Act is not precluded by a prior decision of the education and state employees grievance board arising from the same facts and circumstances.

Mark A. Miller v. Jane L. Cline, Commissioner, Department of Motor Vehicles, No. 21984 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 210, 455 S.E.2d 769:

In a case involving calculation of the period of revocation for subsequent DUI-suspensions, the Court held that under W. Va. Code § 17C-5A-3(b)(2)(B), which provides that "at least one half" of a revocation period must elapse "from the date of the initial revocation during which time the revocation was actually in effect" before a license may be reissued, if a revocation is suspended and the driver retains the right to drive, the period of time the driver is permitted to drive shall not be credited toward the total amount of time that must elapse prior to reinstatement.

Leonard Sniffin v. Jane O. Cline, Commissioner, Department of Motor Vehicles, No. 22573 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 370, 456 S.E.2d 451:

Affirming a second-offense DUI revocation on the basis of a conviction in another jurisdiction, the Court held that a prior criminal adjudication in another state establishing driving under the influence satisfies the same function as an administrative hearing under W. Va. Code § 17C-5A-2.

Alfred O. McDonald, Jr. v. Jane L. Cline, Commissioner, Department of Motor Vehicles, No. 21292 (W. Va. February 17, 1995) (Workman, J.): 193 W.Va. 189, 455 S.E.2d 558:

Rejecting constitutional arguments related to the effect of a DUI-suspension on a driver's employment, the Court held that the administrative procedures contained in W. Va. Code §§ 17C-5A-1 to -4, which permit the revocation of a driver's license for driving under the influence of alcohol, are not violative of the driver's due process and equal protection rights because a valid driver's license is necessary for the driver's employment.

Randy D. Abshire v. Jane L. Cline, Commissioner, Department of Motor Vehicles, No. 22229 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 180, 455 S.E.2d 549:

Reversing a DUI-suspension where the driver was denied a hearing because of an allegedly untimely request for a continuance of such hearing, the Court held that when a request for a continuance is made and, by no fault of the driver or the driver's attorney, the request is not received by the DMV at least five days prior to the hearing, in accordance with DMV rules, the driver may not be denied the opportunity to demonstrate "good cause" for continuing the hearing.

Raymond J. Keegan and Argent Research and Recovery, Ltd. v. Larrie Bailey, as he is the Treasurer of West Virginia, No. 21921 (W. Va. April 22, 1994) (McHugh, J.): 191 W.Va. 145, 443 S.E.2d 826:

Where private company sought access to records of stale checks issued by State of West Virginia, the Court held that unless records of state-dated warrants are presumed to be abandoned property as defined in W. Va. Code § 36-8-8b(a), such records of state-dated warrants are subject to disclosure pursuant to the Freedom of Information Act, W. Va. Code § 29B-1-1, et seq.

Francis O. Day Co., Inc. v. Director, Division of Environmental Protection of the West Virginia Department of Commerce, Labor and Environmental Resources, et al., Nos. 21916 and 21917 (W. Va. March 28, 1994) (Brotherton, C.J.): 191 W.Va. 134, 443 S.E.2d 602:

Overturning the reversal of an adminstrative agency decision not to issue a permit, the Court held that evidentiary findings by adminstrative tribunals should not be reversed unless "clearly wrong."

State ex rel. Chesapeake and Potomac Telephone Company of West Virginia v. Honorable John C. Ashworth, Judge of the Circuit Court of Raleigh County, and Beckley Hospital, Inc., No. 21930 (W. Va. December 16, 1993) (Neely, J.): 190 W.Va. 547, 438 S.E.2d 890:

Granting a writ of prohibition against a circuit court suit for a refund of telephone charges where a complaint was initially filed with the Public Service Commission, the Court held that althought one must ordinarily exhaust administrative remedies before the commencement of proceedings in circuit court, W. Va. Code § 24-4-7 confers concurrent jurisdiction on the Public Service Commission and circuit courts where a customer seeks a refund based upon the rules of the Public Service Commission, but once a complaint is filed with the Public Service Commission, an action in circuit court is foreclosed until the administrative remedies are exhausted.

Jackson L. Smith v. L.W. Bechtold, Commissioner of the West Virginia Department of Motor Vehicles, No. 21543 (W. Va. November 23, 1993) (Brotherton, J.): 190 W.Va. 315, 438 S.E.2d 347:

On a procedural issue raised in DMV's appeal of reversal of the suspension of a driver's license, the Court held that before any continuance may be granted in an appeal from the DMV, the circuit court must conduct an evidentiary hearing and make a finding that there is a substantial probability that the driver will prevail on the merits and that he will suffer irreparable harm if a continuance is not granted.

Cecil C. Varney v. Ken Hechler, Secretary of State of West Virginia, No. 21493 (W. Va. July 16, 1993) (Workman, C.J.): 189 W.Va. 655, 434 S.E.2d 15:

Rejecting complaint that one of an agency's lawyers served as hearing examiner and that no responsive pleading was filed by the agency upon the respondent's appeal of the agency's decision to circuit court, the Court held (1) W. Va. Code § 29A-5-1(d) permits an agency to designate any of its employees as a hearing examiner in contested cases and (2) W. Va. Code § 29A-5-4 only requires the filing of a responsive pleading in an administrative appeal when the circuit court orders such pleading to be filed.

State of West Virginia ex rel. West Virginia Board of Education, et al. v. Honorable Roger L. Perry, Judge of the Circuit Court of Logan County, et al., No. 21697 (W. Va. July 16, 1993) (Miller, J.): 189 W.Va. 662, 434 S.E.2d 22:

Where citizens sought to challenge school consolidation decision of state board through a writ of certiorari proceeding, the Court held (1) W. Va. Code § 29A-1-2(b) defines contested case as a proceeding that involves rights, duties, interests, or privileges of specific parties which are required by law to be decided after an administrative hearing; (2) W. Va. Code § 29A-1-2(b) does not create a substantive right to a hearing for parties; and (3) neither statutes relating to school closing or consolidation nor regulations of the state board of education mandate an administrative hearing prior to its decision to accept, reject, or modify a local board's plan to close or consolidate.

West Virginia Radiologic Technology Board of Examiners v. H. Darrel Darby, D.P.M., No. 21214 (W. Va. February 16, 1993) (Miller, J.): 189 W.Va. 52, 427 S.E.2d 486:

Rejecting a podiatrist's claim that licensing board lacked authority to seek injunction preventing him from using unlicensed radiologic technologists to take x-rays, the Court held that W. Va. § 30-23-3(b) prohibits any firm, association, or corporation from providing radiologic technology services by anyone other than a practitioner or licensee under W. Va. Code § 30-23-3(a).

State of West Virginia ex rel. Mario J. Palumbo, Attorney General v. Graley's Body Shop, Inc., an Ohio corporation, et al., No. 21301 (W. Va. December 14, 1992) (McHugh, C.J.): 188 W.Va. 501, 425 S.E.2D 177:

In an important decision involving the rights of those subject to administrative investigations, the Court held that whether a penalty is civil or criminal depends on (1) legislative intent and (2) whether the sanctions are so punitive as to constitute a criminal penalty. With respect to the second part of this inquiry, the Court held that the following factors should be considered: (1) whether the sanction involves an affirmative disability or restraint; (2) whether the sanction has historically been regarded as a punishment; (3) whether the sanction is imposed only where there is a finding of scienter; (4) whether the sanction will promote the traditional purposes of punishment, retribution and deterrence; (5) whether the regulated behavior already constitutes a crime; (6) whether reasons exist for its imposition independent of retribution and deterrence; and (7) whether it appears to be excessive in light of the justifications for its imposition. With respect to the specific sanctions involved, those available under the West Virginia Antitrust Act, W. Va. Code §§ 47-18-1, et seq., the Court held them to be civil in nature and, therefore, suspected violators were not required to be notified that they are targets of an investigation or that they may have counsel present at oral deposition.

Francis O. Day Co., Inc. v. West Virginia Reclamation Board of Review, No. 21261 (W. Va. December 11, 1992) (Neely, J.): 188 W.Va. 418, 424 S.E.2d 763:

Where statute required a vote by five members of a seven member administrative board of review in order to reverse agency decision, but only three of five qualified members voted to reverse, the Court held that the vote constituted an affirmance, holding that when an administrative agency or board is unable to act because it lacks a statutory quorum or is unable to muster enough votes to meet a statutory requirement of a minimum number of votes for a decision, the agency or board must enter an order allowing the litigants to proceed to the next higher, judicial or administrative, tribunal.

Ronald G. Parks v. Board of Review of the West Virginia Department of Employment Security; James G. Dillon, as Chairman thereof; G. Charles Hughes and Jane Doe, as Members thereof; and Charles T. Cunningham, Administrative Law Judge, No. 21418 (W. Va. December 11, 1992) (Miller, J.): 188 W.Va. 447, 425 S.E.2d 123:

Rejecting the Department of Employment Security's attempt to force claimants to submit to telephonic hearings of their claims, the Court held that where a party requests a hearing before an administrative law judge under W. Va. Code § 21A-7-8, such party may not be required, over objection, to submit to a telephonic hearing.

Joy Technologies, Inc. v. Liberty Mutual Insurance Company, et al., No. 20153 (W. Va. July 21, 1992) (Brotherton, J.) (as modified): 187 W.Va. 742, 421 S.E.2d 493:

Where insurance industry had represented to insurance commissioner that proposed policy language was to be given a particular interpretation, the Court noted that the insurance industry was estopped from affording a different interpretation, holding that corporations which seek to do business in West Virginia must act in a manner consistent with their studied, unambiguous, official, affirmative representations to the state, its subdivisions, or its regulatory bodies.

West Virginia Board of Medicine v. Honorable George Spillers, Judge of the Circuit Court of Brooke County and Weirton Medical Center, Inc., No. 21006 (W. Va. May 14, 1992) (Neely, J.): 187 W.Va. 257, 418 S.E.2d 571:

Rejecting a hospital's attempt to supplement the record on appeal of an administrative decision to the Circuit Court of Brooke County, the Court held that review of Board of Medicine decisions shall be limited to the record before the Board of Medicine unless the petitioner can show "substantial procedural irregularities" in the proceedings before the Board of Medicine. On an unrelated issue, the Court held that original jurisdiction against the Board of Medicine is appropriate only in the Circuit Court of Kanawha County.

Retha A. Osborne v. West Virginia Human Rights Commission and Advance/Gregg Security, No. 19838 (W. Va. February 7, 1991) (Neely, J.): 184 W.Va. 584, 402 S.E.2d 253:

Rejecting a complainant's attempt to advance a retaliatory discharge claim after her gender discrimination claim was dismissed by the Human Rights Commission, the Court reaffirmed its holding in Syl. pt. 2 of McJunkin Corp. v. Human Rights Comm'n, 179 W.Va. 417, 369 S.E.2d 720 (1988), that a discrimination complaint must be sufficient to advise the defendant of the matters charged, but remanded the case for further proceedings after the Human Rights Commission admitted that it had mishandled the complaint from its inception.

Vince P. Shumate v. West Virginia Department of Motor Vehicles, No. 19230 (W. Va. April 19, 1990) (McHugh, J.): 182 W.Va. 810, 392 S.E.2d 701:

Rejecting driver's attack on ten-year suspension for second-offense DUI under a statute strengthened after his first arrest for DUI, the Court held that because the intent of the statute is not punitive, but protection of the public, the ex post facto clauses of the federal and state constitutions do not apply to administrative proceedings for which the purpose is to suspend or revoke a license to operate a motor vehicle.

Terry Halstead and Theodore Morris v. George Dials, Commissioner, West Virginia Department of Energy, and Appalachian Mining, Inc., No. 19502 (W. Va. March 23, 1990) (Miller, J.): 182 W.Va. 695, 391 S.E.2d 385:

Where residents of an area near certain surface mining operations were granted intervention by the DOE in its administrative action against the mining company, but were not consulted prior to the DOE's entry into a consent decree with the operator, the Court held that because the original parties to an administrative proceeding may not waive the rights of intervenors by consent order or otherwise, the consent decree was invalid. The Court further held, however, that although intervenors may not concur in a proposed consent order, an administrative agency may approve such order if it is determined to be reasonable and in accordance with statutory dictates and public policy considerations.

Walter C. Blower v. West Virginia Educational Broadcasting Authority, No. 19154 (W. Va. January 26, 1990) (Miller, J.): 182 W.Va. 528, 389 S.E.2d 739:

In a certified question proceeding finding that the Educational Broadcasting Authority is a state agency entitled to the special venue provisions of W. Va. Code § 14-2-2, the Court set forth five factors for determining whether a particular entity constitutes a state agency: (1) whether the entity's powers are substantially created by the legislature; (2) whether the composition of the entity's governing board is prescribed by the legislature; (3) whether the entity is empowered to operate on a statewide basis; (4) the extent to which the entity is financially dependent upon public funds; and, (5) whether the entity is required to deposit its funds in the state treasury.

Stowers and Sons Trucking Company, Inc. v. Public Service Commission and Eugene Roberts & Son, Inc., No. 19014 (W. Va. December 20, 1989) (Miller, J.): 182 W.Va. 374, 387 S.E.2d 841:

In a competitor's appeal of an award of an amended certificate to permit a common carrier to transport tanks and pipe used in southern West Virginia drilling operations, the Court reversed, holding that the Public Service Commission violated its mandatory duty under W. Va. Code § 24A-2-5 to consider evidence of whether "the service furnished by existing transportation facilities is reasonably efficient and adequate," which would compel denial of a competing certificate. In so holding, the Court expressly rejected, as in direct conflict with clear statutory language to the contrary, the PSC's adoption of the "regulated competition" doctrine, which provides that even whether there is no showing that existing service is inadequate, certification is appropriate if it serves the public interest.

The Consumer Advocate Division of the Public Service Commission of West Virginia, on Behalf of the Residential and Small Commercial Customers of Hope Gas, Inc. v. The Public Service Commission of West Virginia and Hope Gas, Inc., No. 19080 (W. Va. November 3, 1989) (McHugh, J.): 182 W.Va. 152, 386 S.E.2d 650:

Where PSC "interpreted" administrative rule in order to include "transported gas" in the calculation of "unaccounted for gas" [UFG] that triggered, at a certain level, an obligation on the part of the utility to absorb, rather than pass on to customers, the cost of this UFG, the Court held that an agency may not modify, revise, amend, or rewrite an administrative rule under the guise of "interpretation." Where administrative rule permits waiver in cases of "undue hardship," the Court held that it will remand for further proceedings when such rule is waived for "hardship" only. Finally, the Court reaffirmed its rulings that administrative orders must contain specific findings of facts, rather than conclusory statements, in order to withstand judicial scrutiny, especially in cases involving complex economic or scientific data.

State of West Virginia ex rel. Howard Tuck v. Thomas W. Cole, Chancellor of the West Virginia Board of Regents; The West Virginia Board of Regents; James W. Rowley, President of West Virginia College of Graduate Studies; and William Crockett, No. 18200 (W. Va. October 19, 1989) (Neely, J.): 182 W.Va. 178, 386 S.E.2d 835:

Where college administrator sought appointment as a tenured professor, the Court held that because no property right existed in continued employment beyond his current contract, which included nontenure-track professorial duties, the college's refusal to rehire or to grant a hearing to such administrator did not constitute a due process violation.

AGENCY AND PARTNERSHIPS

Robert L. Lowther v. Fred Riggleman and Granville J. Zopp v. Donald H. Lowther, No. 20997 (W. Va. February 25, 1993) (Miller, J.): 189 W.Va. 68, 428 S.E.2d 49:

Where brother of partner sought priority in distribution of partnership assets, the Court held (1) the liability of a partnership to creditors other than the partners must be given priority, pursuant to W. Va. Code § 47-8A-40, in any dissolution and (2) a partner cannot assert a lien on partnership assets that creates a preferential claim over general creditors.

APPELLATE PROCEDURE

Ruth Riffe v. William Armstrong; Deborah Nolley; Dr. Phillip Robertson; Springhaven, Inc., a West Virginia corporation; and Princeton Community Hospital, Inc., a West Virginia corporation, No. 22980 (W. Va. July 17, 1996) (Albright, J.):

Where appeal was not filed until four months after the denial of a motion for R. Civ. P. 59(e) relief from an order granting summary judgment for the remaining defendants, the Court determined such appeal to be timely filed, holding that (1) the propriety of entry of a R. Civ. P. 54(b) order will be reviewed using an abuse of discretion standard; (2) appellate review may be deferred when an appeal is presented from an order disposing of less than all claims and/or parties; (3) whether an appeal should be permitted from an order disposing of less than all claims and/or parties where R. Civ. P. 54(b) is not specifically utilized will be determined from all the circumstances and terms of the order; (4) an order disposing of less than all claims and/or parties that specifically provides that it not to be considered final and appealable will be reviewed only upon petition for writ of prohibition; and (5) an appeal from a R. Civ. P. 59(e) order may be taken at any time within the applicable appeal period.

Joan S. Lipscomb v. Tucker County Commission, No. 23122 (W. Va. July 11, 1996) (Albright, J.):

Reversing the dismissal of an appeal of a grievance from a county commission to circuit court because it was not filed within the thirty-day period provided by the Administrative Procedures Act, the Court held that the doctrine of laches, not the Administrative Procedures Act, applies to determining the timeliness of a petition for writ of certiorari from circuit court to a county commission where no period is provided by law, but any petition for writ of certiorari should not be granted if filed more than four months following the order sought to ve reviewed absent a showing of hardship or other good cause warranting an extension of time.

Sandra Gail Maples and John Maples v. West Virginia Department of Commerce, Division of Parks and Recreation, No. 23112 (W. Va. July 5, 1996) (Albright, J.):

Affirming a defense verdict in a slip-and-fall case where the primary error asserted was deemed not to have been adequately preserved at trial, the Court held that a litigant may not silently acquiesce to a trial court ruling and then allege that such ruling constitutes reversible error on appeal.

William L. Province v. Tammy M. Province and Michael L. Province and Linda D. Province v. William L. Province and Tammy M. Province, No. 22689 (W. Va. May 17, 1996) (Cleckley, J.):

Reviewing an interlocutory order entered pursuant to R. Civ. P. 54(b), the Court held that, when reviewing the propriety of such order, it must determine (1) whether the circuit court completely disposed of one or more claims and (2) whether there is "no just reason for delay."

Billie Burgess v. Mark Porterfield and State Farm Mutual Automobile Insurance Company v. SuperAmerica Group, Inc., dba SuperAmerica Corporation, No. 22956 (W. Va. March 11, 1996) (McHugh, C.J.): ___ W. Va. ___, 469 S.E.2d 114:

Affirming an award of attorney fees and costs in a first-party uninsured motorist case, the Court held that (1) findings of fact are reviewed under a clearly erroneous standard; (2) conclusions of law are reviewed under a de novo standard; and (3) the application of facts to law is reviewed under an abuse of discretion standard.

State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General v. Scott Runyan Pontiac-Buick, Inc., etc., et al., No. 22728 (W. Va. July 19, 1995) (Cleckley, J.): 194 W.Va. 770, 461 S.E.2d 516:

Where attorney general appealed R. Civ. P. 12(b)(6) dismissal of two of several defendants in consumer credit and protection action where the dismissal order failed to include the appealability language contained in R. Civ. P. 54(b), the Court nevertheless stated the exercise of appellate jurisdiction was appropriate, holding that (1) the key to determining if an order is final is not whether the language from R. Civ. P. 54(b) is included, but whether the order approximates a final order in its nature and effect, and (2) a dismissal pursuant to R. Civ. P. 12(b)(6) is appealable. On the issue of the appropriate standard of review of a R. Civ. P. 12(b)(6) dismissal, the Court held that such review is de novo.

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

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

Mary Coleman, et al. v. Irwin Sopher, No. 22592 (W. Va. June 15, 1995) (Cleckley, J.): 194 W.Va. 90, 459 S.E.2d 367:

Where, when given a choice by the trial court, the plaintiffs accepted a new trial and rejected a remittitur, the Court dismissed the appeal, holding that when a party agrees to or requests a new trial, and a new trial is granted because of the agreement or request, there is no right to appeal.

Donald C. McCormick v. Allstate Insurance Company and David Dailey, No. 22551 (W. Va. June 15, 1995) (Cleckley, J.): 194 W.Va. 82, 459 S.E.2d 359:

Where trial court responded to timely filed post-trial motions by letter, rather than by proper order, the Court dismissed the appeal, holding that a motion made pursuant to R. Civ. P. 59(a) within ten days of judgment suspends its finality and the period of appeal commences upon entry of an order disposing of the motion.

James M.B. and Lawrence E.B. v. Carolyn M. and William M., No. 22545 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 289, 456 S.E.2d 16:

Dismissing an appeal as improvidently granted where a R. Civ. P. 59(e) motion had not been ruled upon by the trial court, the Court held (1) it has an obligation to independently ascertain the basis of its jurisdiction in every case; (2) jurisdictional defects cannot be waived by the parties; (3) an appeal pursuant to W. Va. Code § 58-5-1 can be taken only from "final" decisions of a circuit court; (4) "final" decisions are those which terminate the litigation between the parties, leaving nothing but enforcement; (5) R. Civ. P. 59(e) provides the procedural mechanism for parties who wish to challenge a final judgment entered as the result of a motion to dismiss or motion for summary judgment; (6) a R. Civ. P. 59(e), sometimes misnomered a "motion for reconsideration," filed within ten days of entry of judgment, suspends the finality of such judgment and renders the case premature for appeal; and (7) when a R. Civ. P. 59(e) motion is filed, the appeal period begins to run from the date of the entry of the order disposing of the motion.

State of West Virginia v. Dawnella Rogers, No. 21516 (W. Va. July 22, 1993) (Workman, C.J.): 189 W.Va. 730, 434 S.E.2d 402:

Rejecting a defendant's attempt to secure an appeal following expiration of the appeal period while the defendant was a fugitive, the Court held that a criminal defendant does not present good cause for resentencing where the reason for failing to pursue an appeal was that the defendant voluntarily absconded from custody during the statutorily-prescribed appeal period.

Hayes Coonrod v. James B. Clark, individually and James B. Clark, d/b/a St. Albans Metal Works, Inc., and any other corporate entities solely controlled by James B. Clark, No. 21398 (W. Va. July 20, 1993) (Neely, J.): 189 W.Va. 669, 434 S.E.2d 29:

Overruling is holding in First Nat'l Bank of Bluefield v. Clark, 181 W. Va. 494, 383 S.E.2d 298 (1989), and dismissing an appeal filed outside the four-month appeal period, the Court held that for a petition for appeal to be timely presented under W. Va. Code § 58-5-4, the petition must be filed with the clerk of the circuit court within four months of the entry of judgment or within such additional period, up to two months, as may be authorized pursuant to W. Va. Code § 58-5-4.

West Virginia Department of Health and Human Services v. Warren Hess, John Mellinger, and Vicki Britner, No. 21278 (W. Va. March 16, 1993) (Miller, J.): 189 W. Va. 357, 432 S.E.2d 27:

Interpreting an unusual statute defining the term "days" for appeal purposes as "working days exclusive of Saturday, Sunday or official holidays," the Court held that, pursuant to W. Va. Code § 29-6A-2(c), an appeal of a grievance board decision must only be filed within thirty "working days" and not "calendar days." On another issue of appellate procedure, the Court held that although there is no statute relieving the State of the obligation to pay filing fees in connection with an appeal, where such fees are due, W. Va. Code § 59-1-15 requires the circuit clerk to certify the amount due to the auditor for payment.

Robert L. Lowther v. Fred Riggleman and Granville J. Zopp v. Donald H. Lowther, No. 20997 (W. Va. February 25, 1993) (Miller, J.): 189 W.Va. 68, 428 S.E.2d 49:

Where brother of partner sought priority in distribution of partnership assets, but asserted erroneous theory of recovery before trial court, the Court nevertheless reversed on appeal, holding that the doctrine of plain error is appropriate where a case is tried without a jury on a totally erroneous legal theory that was dispositive to the outcome of the case to the substantial prejudice of the appealing party.

David F. Graf, M.D. v. West Virginia University and West Virginia University Medical Corporation, No. 20722 (W. Va. December 11, 1992) (Neely, J.): 189 W. Va. 214, 429 S.E.2d 496:

Where a party relied, in part, on a per curiam opinion, in an action involving a medical school regulation which prohibited its faculty from "moonlighting," the Court held that to the extent a per curiam opinion appears to deviate from generally accepted rules of law, it has little, if any, precedential value.

Dallas Pugh v. Workers' Compensation Commissioner and Alamco, Inc., No. 21106 (W. Va. December 11, 1992) (McHugh, C.J.): 188 W.Va. 414, 424 S.E.2d 759:

Rejecting a claimant's reliance on an unpublished workers' compensation order, the Court held that its unpublished decisions have no precedential value and may not be cited in any court of this state as precedent or authority, except to support a claim of res judicata, collateral estoppel, or law of the case.

Charles W. Young v. JCR Petroleum, Inc., a foreign corporation; J.R. Barati; and Jerry L. Willey, Nos. 21010 and 21137 (W. Va. November 12, 1992), (Neely, J.): 188 W.Va. 280, 423 S.E.2d 889:

Holding improper actions taken by a trial court during the pendency of certified question proceedings, the Court held that once a question is certified, all proceedings must be stayed in the circuit court pending resolution unless unforeseeable matters of great urgency demand attention in order to avoid substantial injustice.

Joyce Triggs v. Berkeley County Board of Education, No. 20220 (W. Va. May 15, 1992) (Neely, J.): 187 W.Va. 500, 420 S.E.2d 260:

Regarding a school system's appeal rights in employment cases, the Court held that a county board of education or superintendent may appeal a grievance decision made by the superintendent's design at level two or by an independent hearing examiner at level four.

State of West Virginia v. Kennie Childers, No. 20426 (W. Va. March 5, 1992) (Miller, J.): 187 W.Va. 54, 415 S.E.2d 460:

Reversing a conviction on the basis of a defective indictment, the Court implicitly held that retrial would not be barred, holding that reversal of a criminal case on appeal does not ordinarily preclude retrial except when reversal is based upon insufficiency of the evidence.

State of West Virginia v. Melissa Walters, No. 20110 (W. Va. November 18, 1991) (McHugh, J.): 186 W.Va. 169, 411 S.E.2d 688:

Rejecting the prosecution's appeal from the dismissal of misdemeanor battery complaints, the Court held that W. Va. Code § 58-5-30 does not authorize an appeal by the State from the dismissal of a criminal complaint initially filed in magistrate court.

Cynthia R. Durm v. Heck's, Inc., a West Virginia corporation; and New River Foodland, Inc., a West Virginia corporation, No. 19791 (W. Va. February 13, 1991) (Workman, J.): 184 W.Va. 562, 401 S.E.2d 908:

Where trial court granted summary judgment to one of two defendants, the Court held an appeal from such order, which did not contain language from R. Civ. P. 54(b) to the effect that "no just reason for delay" existed and "direct[ing] . . . entry of judgment," was nevertheless not interlocutory, because the Court was able to determine from the order that the trial court's ruling approximated a final order in its nature and effect.

Retha A. Osborne v. West Virginia Human Rights Commission and Advance/Gregg Security, No. 19838 (W. Va. February 7, 1991) (Neely, J.): 184 W.Va. 584, 402 S.E.2d 253:

Where an employer failed to file exceptions to the adverse aspects of a hearing examiner's ruling, which largely held in its favor, the Court held that it was precluded from cross-assigning those adverse aspects as error on appeal.

Patricia Ann Paxton v. Paul Crabtree, Administrative Director, West Virginia Supreme Court of Appeals, State of West Virginia, Velt King, Magistrate of Clay County, No. 19615 (W. Va. December 6, 1990) (Miller, J.): 184 W.Va. 237, 400 S.E.2d 245:

Rejecting an argument that the failure to appeal a circuit court's remand order to an administrative agency barred a subsequent appeal, the Court held a remand by an intermediate appellate court is ordinarily not appealable to a higher appellate court as long as judicial action is required in the lower tribunal.

Calvin P. Fenton, et al. v. Taunja Willis Miller, et al., No. 19174 (W. Va. March 29, 1990) (Neely, C.J.): 182 W.Va. 731, 391 S.E.2d 744:

Where the trial court dissolved a preliminary injunction after an appeal from such injunction was granted, the Court reversed, holding that once the Supreme Court of Appeals assumes jurisdiction of a matter, circuit courts are without jurisdiction to enter further orders except by specific leave of the Supreme Court of Appeals.

Frank Billotti v. A.V. Dodrill, Jr., Commissioner of the West Virginia Department of Corrections, and Jerry C. Hedrick, Warden, No. 18534 (W. Va. March 9, 1990) (Brotherton, J.): 183 W.Va. 48, 394 S.E.2d 32:

Although the Court noted criminal defendants have a constitutional right to petition for appeal, including a free transcript and effective assistance of appointed counsel, it held that, even for those sentenced to terms of life imprisonment without possibility of parole, there is no constitutional right to full appellate review.

ARBITRATION

Leroy M. Rashid and Richard C. Rashid v. Schenck Construction Company, Inc., and Schenck & Associates, Inc., a Kentucky corporation, United States Fidelity & Guaranty Company, Intervenor, No. 21300 (W. Va. April 23, 1993) (Brotherton, J.): 190 W.Va. 363, 438 S.E.2d 543:

Where developer filed suggestion against contractor's bonding company after the contractor's default, the Court held (1) an arbitration agreement, when it is part of a general contract, can be incorporated into a bond, by reference, to the general contract; (2) a suggestion action may be a proper method to collect on a performance bond obligation if the surety is liable or indebted to the judgment debtor; and (3) although a surety is collaterally estopped from relitigating matters decided in an arbitration proceeding under such circumstances, the surety may raise whatever other defenses that may be available in subsequent enforcement proceedings.

ATTORNEYS

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

Reversing an order awarding an hourly fee in a contingency fee case taken by the plaintiff's former associates when they departed the firm, the Court held that although the amount of time spent by each respective firm is an important factor in a contingency fee case where a lawyer employed by a firm takes the client upon his or her departure and no contract exists governing how the fees are to be divided, the following factors must also be considered (1) the relative risks assumed by each firm; (2) the frequency and complexity of any issues addressed by each firm; (3) the proportion of funds invested and other contributions made by each firm; (4) the quality of representation; (5) the degree of skill needed to achieve success; (6) the results of each firm's efforts; (7) the reason the client chose the departing lawyer; (8) the viability of the claim at the time of departure; and (9) the amount of recovery. The Court further held that, as long as its reasons are set forth in the record, any award of attorney fees in these cases will be reviewed solely under an abuse of discretion analysis.

Linda M. Statler, Guardian of Destiny Lynn Ware v. Vel Anne Dodson, Executrix of the Estate of Richard A. Ware, No. 22544 (W. Va. December 13, 1995) (Recht, J.) 195 W.Va. 646, 466 S.E.2d 497:

Reversing an order denying attorney fees based, in part, on the circuit court's view that no implied contract existed between the attorney and the pretermitted child on whose behalf the attorney sought to establish paternity for purposes of sharing in her biological father's estate, the Court held that a contract for legal services between infants and their lawyers will be implied if (1) employment of the lawyer was reasonably necessary; (2) the terms of employment were fair and reasonable; and (3) the legal services were performed and necessary.

Lawyer Disciplinary Board v. Abishi C. Cunningham, a member of The West Virginia State Bar, No. 22761 (W. Va. October 12, 1995) (Recht, J.) 195 W.Va. 27, 464 S.E.2d 181:

On rehearing, imposing a public reprimand, two years supervised practice, and costs on an attorney for whom the Court initially accepted a recommendation of a three month suspension after the attorney failed to timely object, the Court held that, if filed within four months of the recommendation, a motion for relief from a lawyer disciplinary order, imposed following failure of either party to object to the recommendation within the thirty days provided in R. Lawyer Disc. Proc. 3.11, will be considered by the Court as if made pursuant to R. Civ. P. 60(b).

Lawyer Disciplinary Board v. George S. Vieweg, III, a former member of The West Virginia State Bar, No. 22777 (W. Va. July 11, 1995) (Cleckley, J.): 194 W.Va. 554, 461 S.E.2d 60:

Rejecting a recommendation against reinstatement of an attorney who resigned in 1988 in conjunction with a felony conviction for bank fraud, the Court ordered reinstatement as of January 1, 1996, with five years of supervision and continued treatment for alcohol addiction, holding that where a conflict exists between Lawyer Disciplinary Counsel and a Hearing Panel Subcommittee of the Lawyer Disciplinary Board with regarding to a recommendation on a petition for reinstatement, the Subcommittee shall have the right to representation by separate counsel before the Court upon review of the petition.

Lawyer Disciplinary Board v. Darrell V. McGraw, Jr., a member of The West Virginia State Bar, No. 22639 (W. Va. June 19, 1995) (McHugh, C.J.): 194 W.Va. 788, 461 S.E.2d 850:

Imposing a reprimand and costs on the Attorney General following his disclosure of a client confidence, the Court held (1) R. Lawyer Disc. P. 3.7 requires formal charges of ethical misconduct to be proven by clear and convincing evidence; (2) a lawyer's duty of client confidentiality is broader than the attorney-client privilege, protecting more than merely the "confidences" or "secrets" of a client; and (3) a lawyer's duty of client confidentiality is not relieved where the information at issue is party of a public record or has been disclosed to a third-party by the client.

State of West Virginia ex rel. John Doe, Jane Doe, and Jane Roe v. Honorable Joseph G. Troisi, Special Judge of the Circuit Court of Kanawha County, and Michele Rusen, Special Prosecuting Attorney for Kanawha County, No. 22817 (W. Va. May 18, 1995) (Cleckley, J.): 194 W.Va. 28, 459 S.E.2d 139:

Refusing to issue a writ of prohibition against an order compelling attorneys to testify before a grand jury even though their client was a target of the grand jury investigation, the Court held (1) a writ of prohibition is the proper method of challenging the refusal of a motion to quash a subpoena based on the attorney-client privilege; (2) the attorney-client privilege is alone insufficient to compel the quashing of a grand jury subpoena of attorney of an individual under investigation; (3) the assertion and determination of the applicability of the attorney-client privilege where an attorney has been subpoenaed by a grand jury investigating the attorney's client must be done on a question-by-question basis; and (4) a circuit court may require the prosecutor to make a preliminary showing of relevance and inability to obtain the disputed information from another source where an assertion is made that a subpoena has been issued for improper reasons.

State of West Virginia ex rel. West Virginia Highlands Conservancy, Inc.; West Virginia Wildlife Federation; West Virginia Council, Trout Unlimited, Inc.; and West Virginia Citizen Action Group v. West Virginia Division of Environmental Protection and David C. Callaghan, Director of the West Virginia Division of Environmental Protection, No. 22233 (W. Va. April 14, 1995) (Cleckley, J.): 193 W.Va. 650, 447 S.E.2d 920:

Granting one-half of a request for attorney fees and costs in a partially successful mandamus proceeding, the Court held (1) where a public official or agency deliberately and knowingly refused to perform a clear legal duty, unless contrary extraordinary circumstances are present, attorney fees and costs should be awarded to the petitioner; (2) where a public official or agency negligently or unknowingly failed to perform a clear legal duty, the award of attorney fees and costs to the petitioner depends upon (i) the relative clarity of the legal duty, (ii) whether the duty was owed the general public or special interests, and (iii) whether the petitioner's resources are sufficient to bear the cost of the proceeding; and (3) apportionment of attorney fees and costs in a mandamus proceeding is appropriate where less than a complete victory is obtained.

Office of Disciplinary Counsel v. Geary M. Battistelli, a member of The West Virginia State Bar, No. 22472 (W. Va. April 14, 1995) (Workman, J.): 193 W.Va. 629, 457 S.E.2d 652:

Imposing an interim suspension on a lawyer charged with multiple counts of professional misconduct, the Court held (1) R. Lawyer Disc. P. 3.27 should be used only in the most extreme cases of lawyer misconduct; (2) a petition for extraordinary relief under R. Lawyer Disc. P. 3.27 should contain (i) specific allegations of misconduct and (ii) supporting documentation and affidavits; (3) when an interim suspension has been imposed pursuant to R. Lawyer Disc. P. 3.27, the Office of Disciplinary Counsel should conclude the underlying disciplinary proceeding within ninety days, absent any request for continuance by the respondent, after the suspension becomes effective; and (4) a lawyer who engages in a loan transaction with a client must ensure that the arrangement satisfies the provisions of R. Prof. Cond. 1.8(a)(1)-(3).

Troy Maynard v. Kenneth Adkins, No. 22529 (W. Va. March 27, 1995) (McHugh, J.): 193 W.Va. 456, 457 S.E.2d 133:

Reversing the award of a new trial based upon an attorney's alleged conflict of interest, the Court held that where an attorney, as co-counsel, represents a plaintiff in a personal injury action and, in an unrelated matter, represented the personal representative of an estate of which a defendant in the personal injury action was a beneficiary, a new trial should not have been awarded where (i) the defendant attended neither the trial nor any pretrial proceedings with respect to the personal injury action and (ii) no discussions or meetings occurred between the attorney and the defendant with regard to either the personal injury action or the estate matter.

Dana Ruth Musick v. Lynn Allen Musick, No. 22344 (W. Va. December 15, 1994) (Workman, J.): 192 W.Va. 527, 453 S.E.2d 361:

Reversing the disqualification of an attorney because of his intimate relationship with the client, the Court held that although it is a better practice for attorneys not to engage in sexual relations with any client in any type of case, because no existing provision of the Rules of Professional Conduct specifically precludes a lawyer/client sexual relationship, such relationship is alone insufficient to warrant disqualification, but that other provisions of the Rules of Professional Conduct may be violated by such relationship which may warrant disqualification.

Committee on Legal Ethics of The West Virginia State Bar v. James R. Sheatsley, a member of The West Virginia State Bar, No. 22287 (W. Va. November 21, 1994) (McHugh, J.): 192 W.Va. 272, 452 S.E.2d 75:

Reprimanding an attorney for acquiescing in an arrangement to pay a witness a fee contingent upon the outcome of the litigation, the Court held that R. Prof. Cond. 1.8(k) is violated when a lawyer acquiesces in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case.

State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General of West Virginia v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, and Fahlgren Martin, Inc., No. 22235 (W. Va. November 18, 1994) (Neely, J.): 192 W.Va. 195, 451 S.E.2d 761:

Overturning the award of attorney fees and costs to the prevailing party in a mandamus proceeding against the attorney general, the Court held that only in mandamus proceedings where a public officer "willfully" fails to obey the law is an award of attorney fees and costs appropriate.

Committee on Legal Ethics of The West Virginia State Bar v. Thomas H. McCorkle, a member of The West Virginia State Bar, No. 22315 (W. Va. November 18, 1994) (Cleckley, J.): 192 W.Va. 286, 452 S.E.2d 377:

Imposing a two-year suspension, mandatory substance abuse treatment, and costs upon an attorney convicted of cocaine possession, the Court held that (1) substantial deference is given to the Committee's findings of fact unless they are not supported by reliable, probative and substantial evidence and (2) although the Court will carefully consider the Committee's recommendations regarding sanctions, it will ultimately exercise its own independent judgment.

Committee on Legal Ethics of The West Virginia State Bar v. C. Andy Keenan, a suspended member of The West Virginia State Bar, No. 22366 (W. Va. November 1, 1994) (McHugh, J.): 192 W.Va. 90, 450 S.E.2d 787:

Annulling a lawyer's license for numerous ethical violations, including failure to return client files, failure to return court files, failure to respond to ethics complaints, and failure to notify clients of his earlier suspension, the Court held that a suspended attorney who fails to notify clients of such suspension and to perform associated acts in compliance with the applicable rules may have his or her license annulled.

State of West Virginia ex rel. Calvin Ray Tyler v. Honorable A. Andrew MacQueen, III, Judge of the Circuit Court of Kanawha County, No. 22269 (W. Va. July 15, 1994) (Workman, J.): 191 W.Va. 597, 447 S.E.2d 289:

In a departure from cases decided prior to the adoption of R. Prof. Cond. 1.11, the Court held that there is no imputed disqualification of the office of prosecuting attorney when a criminal defendant's former counsel becomes an assistant prosecuting attorney if the assistant prosecuting attorney is screened from any involvement in the case.

Linda L. Powroznik, Administratrix and Personal Representative of the Estate of Dennis F. Powroznik v. C&W Coal Company, a corporation, No. 22014 (W. Va. May 27, 1994) (Miller, J.): 191 W.Va. 293, 445 S.E.2d 234:

In a case involving whether a contingency fee on the full amount of a settlement in a Mandolidis case can be collected, the Court held (1) in determining the excess recovery in a deliberate intent suit against an employer under W. Va. Code § 23-4-2(b), the amount of workers' compensation benefits must be deducted from the total award or settlement; (2) where a workers' compensation claim is made under W. Va. Code § 23-4-2(b), the attorney fee for any workers' compensation award is controlled by the fee schedule set forth in W. Va. Code § 23-5-5; and (3) the attorney fee for damages obtained in excess of workers' compensation benefits is not controlled by the fee schedule set forth in W. Va. Code § 23-5-5.

West Virginia Canine College, Inc., and Wayne Davis v. David R. Rexroad, Lynne W. Rexroad, etc., et al. v. Wayne Davis, No. 21970 (W. Va. May 20, 1994) (Miller, J.): 191 W.Va. 209, 444 S.E.2d 566:

Affirming the dismissal of claims against an attorney based upon an alleged conflict of interest in a series of real estate transactions, the Court held that although an attorney's representation of two or more clients with adverse or conflicting interests constitutes such misconduct as to subject him to liability for malpractice unless the attorney has obtained the consent of the clients after full disclosure of all facts surrounding the dual representation, because the attorney's title work in the instant case on behalf of parties against whose indirect interest the attorney later represented another client was unrelated to such title work, there was no substantial relationship between the two representations that would support a claim of malpractice.

Robert Reed Sowa, heretofore, and in his individual capacity heretofore appointed as guardian ad litem v. Roy C. Huffman, Stanley Adkins, and Randy Harris, Committee for Nolan B. Hamric, an incompetent, and County Commission of Braxton County, John Hamric and Leah Hamric, Intervenors, No. 21569 (W. Va. April 4, 1994) (McHugh, J.): 191 W.Va. 105, 443 S.E.2d 262:

Rejecting an attempt by a court-appointed guardian ad litem to recover attorney fees and expenses incurred after the competency of his client was determined and a committee appointed, the Court held that the duties of a guardian ad litem appointed pursuant to W. Va. Code § 27-11-1(b) to represent a respondent in an incompetency proceeding conclude when a committee is appointed and the appeal period expires.

Barbara Ann Quesinberry v. Michael R. Quesinberry and Tina Michelle Carter v. Jerome Elwood Carter, Jr., No. 21927 (W. Va. March 24, 1994) (Neely, J.): 191 W.Va. 65, 443 S.E.2d 222:

In a certified question proceeding involving issues regarding the compensation of attorneys appointed as guardians for prisoners and infants, the Court held (1) the Administrative Office of the Courts is not responsible for the payment of fees and costs for attorneys appointed as guardians for prisoners named as defendants in civil actions; (2) appointment of guardians for prisoners named as defendants in civil actions is not mandatory, pursuant to R. Civ. P. 17(c), if the trial court can order another appropriate remedy such as continuing the civil action pending the prisoner's release; (3) if the parties are indigent so as to preclude an assessment of the fees and costs of an attorney appointed as guardian for an infant in a paternity case, the child is an "eligible client" pursuant to W. Va. Code § 29-21-1, et seq., requiring payment through the Office of Public Defender Services; and (4) in a limited number of instances when a court determines that an attorney is essential to the administration of justice in private civil litigation, an attorney may be appointed without compensation.

State of West Virginia ex rel. Charleston Area Medical Center, a corporation v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County; Joshua Herb, an infant suing by his next friend and mother, Vicki Herb; and Vicki Herb; and Glen F. Herb, No. 21821 (W. Va. October 29, 1993) (Miller, J.): 190 W.Va. 186, 427 S.E.2d 759:

Clarifying its holding in Dent v. Kaufman, 185 W. Va. 171, 406 S.E.2d 68 (1991), regarding conducting ex parte interviews of employees of a corporation involved in litigation, the Court held that former employees of a corporation may be interviewed on an ex parte basis because such interviews are not prohibited by Rule 4.2 of the Rules of Professional Conduct unless the former employees are represented by their own attorney.

Mildred Walden v. Jay M. Hoke and Fredrick G. Staker, III, No. 21277 (W. Va. April 23, 1993) (Brotherton, J.): 189 W.Va. 222, 429 S.E.2d 504:

Affirming the dismissal of a malpractice action premised upon joint representation in an earlier divorce proceeding in which the trial court rejected an identical attack on a property settlement agreement, from which the plaintiff did not appeal, the Court held that although it is improper for a lawyer to represent both the husband and wife at any stage of a divorce proceeding and to prepare an answer for the defendant even if the divorce is simple and uncontested, a litigant cannot relitigate an issue in a malpractice action previously decided in the earlier proceeding from which the alleged malpractice arose.

State of West Virginia ex rel. Angela McClanahan v. Honorable John Hamilton, Judge of the Circuit Court of Pendleton County, No. 21523 (W. Va. April 23, 1993) (Miller, J.): 189 W.Va. 290, 430 S.E.2d 569:

Concluding that the trial court should have disqualified the prosecuting attorney who had represented the defendant, charged with maliciously assaulting her husband, in an earlier divorce matter in which she had divulged information regarding her husband's abusive behavior, the Court held (1) R. Prof. Cond. 1.9(a) precludes an attorney who has formerly represented a client from representing another person in a substantially related matter that is materially adverse to the interests of the former client unless the former client consents after consultation and (2) once a former client has established that a former attorney is representing a party in a substantially related matter, the former client need not demonstrate that confidential information was divulged, which will be presumed from the relationship.

Committee on Legal Ethics of The West Virginia State Bar v. Joseph C. Cometti, a member of The West Virginia State Bar, No. 21506 (W. Va. March 30, 1993) (Miller, J.): 189 W.Va. 262, 430 S.E.2d 320:

Imposing a 15-month suspension for an attorney who (1) entered into a lease agreement with a client which ultimately resulted in a dispute for which the attorney did not inform the client of her right to separate representation; (2) failed to respond to bar counsel's request for information regarding certain complaints under investigation; (3) failed to promptly surrender a client's file when the client discharged the attorney; and (4) entered into an agreement with a client to pay her the unemployment compensation benefits which would have been the subject of an appeal the attorney neglected to file without informing the client of her right to separate representation, the Court held (1) in order to avoid violating the ethical prohibition against having an interest adverse to a client, an attorney must fully disclose the nature of his or her interest, including the possible adverse effect on the client, after which the client must consent to continued representation; (2) an attorney who fails to respond to bar counsel violates R. Prof. Cond. 8.1(b); (3) R. Prof. Cond. 1.16(a)(3) permits a client to discharge an attorney, subject to liability for payment of services rendered; and (4) where an attorney has committed malpractice and seeks to have the client release the attorney from liability, R. Prof. Cond. 1.8(h) requires that the attorney advise the client in writing that consultation with an independent attorney should be undertaken.

J. David Judy, III v. Honorable Sam White, Judge of the Circuit Court of Doddridge County, No. 21324 (W. Va. December 16, 1992) (McHugh, C.J.): 188 W.Va. 633, 425 S.E.2d 588:

In a case involving a dispute over an attorney's criminal appointment voucher, the Court held that (1) single appeals on multiple convictions constitute a single proceeding for purposes of a criminal appointment voucher; (2) a trial court's decision on a criminal appointment voucher will not be disturbed absent an abuse of discretion; and (3) trial courts should give reasons for reducing criminal appointment vouchers in order to allow the effected attorney to petition the trial court for reconsideration.

Committee on Legal Ethics of The West Virginia State Bar v. Joseph R. Martin, a suspended member of The West Virginia State Bar, No. 20859 (W. Va. June 1, 1992) (Workman, J.): 187 W. Va. 340, 419 S.E.2d 4:

Where attorney failed to cooperate with ethics investigation, the Court held (1) failure to respond to an ethics complaint constitutes a violation of R. Prof. Cond. 8.1(b) and (2) where an attorney fails to respond within a reasonable time to requests for information by disciplinary counsel, the allegations of the complaint will be deemed to be true for purposes of the disciplinary proceeding.

Committee on Legal Ethics of The West Virginia State Bar V. John R. Mitchell, a member of The West Virginia State Bar, No. 21005 (W. Va. May 15, 1992) (Neely, J.): 187 W. Va. 287, 418 S.E.2d 733:

Imposing a 60-day suspension on an attorney whose clients' cases were dismissed, with prejudice, due to failure to prosecute, the Court rejected a request for alternative punishment in the form of community service, holding that it would consider such discipline only where appropriate and where the details of the proposed service are properly considered and evaluated by the Committee on Legal Ethics.

Committee on Legal Ethics of The West Virginia State Bar v. John L. Boettner, Jr., No. 19211 (W. Va. March 24, 1992) (Miller, J.): 188 W.Va. 1, 422 S.E.2d 478:

Imposing a three-year suspension and costs on an attorney convicted of felony tax evasion, the Court held that mitigating factors justified reduction of the ordinary five-year annulment for felony conviction to only three years, further noting the term "annulment" refers to revocation of the license to practice law, whereas the term "disbarment" refers to the effect of such annulment on the individual attorney.

Committee on Legal Ethics of The West Virginia State Bar v. Charles F. Printz, Jr., No. 20665 (W. Va. March 23, 1992) (Neely, J.): 187 W.Va. 182, 416 S.E.2d 720:

Dismissing a complaint against an attorney who threatened an embezzler with criminal prosecution he failed to repay embezzled funds, the Court held that DR 7-105(a) of the Code of Professional Responsibility does not apply to otherwise legitimate negotiations undertaken on behalf of a client.

State of West Virginia ex rel. Morgan Stanley & Co., Inc.; Goldman Sachs & Co.; and Chase Securities, Inc. v. Honorable A. Andrew MacQueen, Judge of the Circuit Court of Kanawha County, and State of West Virginia, No. 20857 (W. Va. March 19, 1992) (Workman, J.): 187 W.Va. 87, 416 S.E.2d 55:

Holding that the trial court should have disqualified a law firm from representing both the State and parties whom the State had charged with wrongdoing, the Court held that (1) a pleading which charges individuals with wrongdoing, even if such individuals are not named as parties, may support a finding of adversity of interest within the meaning of Rule 1.7 of the Rules of Professional Conduct, and may be sufficient to disqualify a law firm representing the party who alleges such wrongdoing from representing the individuals so charged in the pleading, and (2) an attorney for the State may not represent anyone with an interest adverse to the interests of the State of West Virginia even with the consent of all parties.

The Committee on Legal Ethics of The West Virginia State Bar v. George S. Taylor, a member of The West Virginia State Bar, No. 20679 (W. Va. March 5, 1992) (Miller, J.): 187 W.Va. 39, 415 S.E.2d 280:

Imposing a public reprimand on an attorney who bounced a check, then failed to make prompt restitution, the Court held that although writing a bad check does not constitute an act involving moral turpitude, where an attorney knows that funds in an account are insufficient or fails to make a check good within a reasonable time after receiving notice of the insufficiency, such conduct may constitute dishonesty, misrepresentation, or adversely reflect on the attorney's fitness to practice, warranting imposition of appropriate discipline.

The Committee on Legal Ethics of the West Virginia State Bar v. Thomas L. Craig, Jr., No. 20612 (W. Va. February 7, 1992) (Miller, J.): 187 W.Va. 14, 415 S.E.2d 255:

Imposing a three-year suspension on an attorney who admittedly engaged in illegal campaign activity, lied to a grand jury about cash payments during an election campaign, and failed to report income received as compensation for services rendered to a candidate, the Court held (1) perjured testimony before a grand jury by an attorney will be grounds for discipline even though no indictment has resulted, and (2) false swearing on a material issue by an attorney will be grounds for discipline even though no harm results.

Gary Wayne Frasher v. West Virginia Board of Law Examiners, No. 20087 (W. Va. July 29, 1991) (Workman, J.): 185 W.Va. 725, 408 S.E.2d 675:

Affirming the rejection of an applicant to the bar on the ground of unfitness based upon 3 DUI convictions and 27 convictions of various other traffic offenses, the Court held (1) a higher standard of good moral character may be applied to a bar applicant than a practicing attorney if there is a rational connection between the applicant's fitness and capacity to practice law; (2) because alcohol abuse can impact on an applicant's fitness to practice law, it is an appropriate factor to be considered in ascertaining whether an applicant has proven his character and fitness; and, (3) although the passage of time is alone insufficient to demonstrate rehabilitation, a rejected applicant may later be admitted based upon proof that the applicant has been rehabilitated.

The Committee on Legal Ethics of the West Virginia State Bar v. Michael C. Farber, No. 19909 (W. Va. June 27, 1991) (Neely, J.): 185 W.Va. 522, 408 S.E.2d 274:

Where, inter alia, an attorney misrepresented the deposition testimony of a fellow attorney, accused a circuit judge of criminal conspiracy, and threatened to initiate a federal investigation of another circuit judge, the Court imposed a three-month suspension and ordered a psychiatric exam as a precondition to reinstatement, holding that (1) the first amendment does not protect a lawyer's criticism of a judge which consists of knowingly false statements or false statements made with a reckless disregard for their truth, and (2) proof of rehabilitation may be required as a condition to attorney reinstatement following a suspension or disbarment.

The Committee on Legal Ethics of the West Virginia State Bar v. Geary M. Battistelli, No. 19874 (W. Va. May 1, 1991) (Miller, C.J.): 185 W.Va. 109, 405 S.E.2d 242:

Affording reciprocal enforcement to a Fourth Circuit decision to discipline an attorney for certain factual misrepresentations in his brief and at oral argument, the Court held that Article VI, Section 28-A of the By-Laws of the West Virginia State Bar provides that a final adjudication of professional misconduct in another jurisdiction conclusively establishes the fact of such misconduct for purposes of reciprocal discipline, but that an attorney may challenge the disciplinary action of the foreign jurisdiction on four grounds: (1) the procedure followed in the other jurisdiction violated due process; (2) there was a total infirmity of proof of misconduct; (3) imposition of the same discipline would result in a grave injustice; or (4) the misconduct warrants a substantially different type of discipline.

Committee on Legal Ethics of The West Virginia State Bar v. Richard Hess, a Member of The West Virginia State Bar, No. 20225 (W. Va. December 19, 1991) (Miller, C.J.): 186 W.Va. 514, 413 S.E.2d 169:

Imposing a two-year suspension on an attorney who converted partnership funds to his own use, the Court held that (1) the Rules of Professional Conduct apply to an attorney's relationship with his or her firm; (2) an attorney's conversion of firm funds without authorization to his or her own personal use reflects a dishonest and deceitful nature exposing the attorney to discipline; and (3) the repayment of funds wrongfully held by an attorney does not negate a violation of the Rules of Professional Conduct, but may be considered in mitigation of punishment.

Charles G. Garlow v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, No. 20204 and David L. Grubb v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, No. 20205 (W. Va. December 17, 1991) (McHugh, J.): 186 W.Va. 457, 413 S.E.2d 112:

Where former attorney general sought to disqualify firm representing former assistants in a wrongful termination suit on the ground that a member of the firm was also an assistant attorney general at the time of the terminations, the Court held that, upon proper factual development, circuit courts have the authority to disqualify lawyers whose ethical conflicts present a clear threat to the fair and efficient administration of justice.

Carl W. Smithson, Sr., dba Smithson Brothers Well Service Co. v. United States Fidelity & Guaranty Company and Basil Thumm, No. 20073 (W. Va. November 22, 1991) (Miller, C.J.): 186 W.Va. 195, 411 S.E.2d 850:

Where insurance company sought to disqualify plaintiff's attorney based upon allegations that his testimony was necessary to support its claim that the attorney's procrastination had increased the plaintiff's damages, the Court held that although Rule 3.7 of the Rules of Professional Conduct generally make it unethical for a lawyer to appear as a witness on behalf of his or her client, when an attorney is sought to be disqualified under this rule, the motion should not be granted unless (1) the attorney will give evidence material to the issues being litigated; (2) the evidence cannot be obtained elsewhere; and, (3) the testimony is actually or potentially prejudicial to the testifying attorney's client.

The Committee on Legal Ethics of the West Virginia State Bar v. Arch A. Moore, Jr., No. 19724 (W. Va. October 31, 1991) (Brotherton, J.): 186 W.Va. 127, 411 S.E.2d 452:

Imposing annulment on a politician/lawyer convicted by plea of a variety of federal crimes, including mail fraud, income tax evasion, and obstruction of justice, who later sought to withdraw the plea based upon the alleged ineffectiveness of retained counsel, the Court held that mitigation hearings are inappropriate when the circumstances involve wilful violation of the public trust by extortion or obstruction of justice.

The Committee on Legal Ethics of the West Virginia State Bar v. John S. Folio, a member of the West Virginia State Bar, No. 19698 (W. Va. December 20, 1990) (Workman, J.): 184 W.Va. 503, 401 S.E.2d 248:

Rejecting the contention by an attorney convicted of conspiracy to obstruct justice that he should have been afforded a mitigation hearing, the Court held that such hearings are the exception, rather than the rule, depending upon a variety of factors, such as the nature of the attorney's misconduct, surrounding facts and circumstances,, previous ethical violations, the wilfullness of the conduct, and the adequacy of previous opportunities to present evidence.

Bruce E. Hall and Talheim Village, Inc. v. Pat A. Nichols, No. 19363 (W. Va. December 20, 1990) (Workman, J.): 184, W.Va. 466, 400 S.E.2d 901:

Affirming the award of summary judgment in an attorney malpractice action, the Court held that where the act complained of in a legal malpractice action is a breach of the specific terms of a contract, rather than from duties imposed by the attorney-client relationship, the statute of limitations applicable to contract actions applies, but that where the act complained of arises from a breach of duty imposed by the attorney-client relationship, rather than the terms of a contract, the statute of limitations applicable to tort actions applies.

Bernice B. Weinstein v. West Virginia Board of Law Examiners, Ross Maruka, Bradley J. Pyles, G. Charles Hughes, Rebecca A. Baitty, Sarah Nell Hall, James St. Clair, and Robert Aitcheson, No. 19651 (W. Va. June 14, 1990) (Miller, J.): 183 W.Va. 158, 394 S.E.2d 757:

Where ten months elapsed between applicant's retirement from federal government and commencement of her employment at the law firm of Steptoe & Johnson and another six months elapsed before she filed her application for admission, the Court upheld rejection of her application by the Board of Law Examiners on the ground that she had not been "lawfully engaged in the active practice of law for five (5) years next preceding" her application under Rule 4.0(b) of the Rules for Admission to the Practice of Law, especially where the applicant had failed to show substantial diligence in seeking admission to practice.

Ralph J. Keister and Ruby Keister v. William W. Talbott and Charles F. Herold, Webster County Clerk, No. 19081 (W. Va. April 2, 1990) (Miller, J.): 182 W.Va. 745, 391 S.E.2d 895:

In an attorney malpractice action arising from the failure to uncover a prior conveyance of the mineral estate in a title examination allegedly due to improper indexing by the county clerk, the Court held that an attorney who fails to exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession in similar circumstances is liable for damages to his or her client that are the direct and proximate result of such negligence. The Court held, however, that the client bears the burden of proving both his or her loss and its causal connection to the attorney's negligence. The Court further held that where a client has been injured by a negligent title certification or examination, the exact nature of damages depends upon the nature of the property, the character of the negligence, and other appropriate factors. Finally, the Court held that damages for the negligent failure to uncover an outconveyance are ordinarily the difference between the value of the property actually received and the purchase price. Because the evidence was conflicting regarding whether the property in question was worth less than the purchase price, even without the mineral estate, the Court affirmed the jury's verdict of no damages.

The Committee on Legal Ethics of the West Virginia State Bar v. John L. Boettner, Jr., No. 19211 (W. Va. March 23, 1990) (Miller, J.): 183 W. Va. 136, 394 S.E.2d 735:

In this attorney disciplinary proceeding, the Court, overruling the holding of In the Matter of Mann, 151 W. Va. 644, 154 S.E.2d 860 (1967) and its progeny that willful failure to pay federal income taxes constitutes a crime of moral turpitude mandating disbarment, held that, because a license to practice law is a valuable right, due process dictates that where annulment of an attorney's license is sought pursuant to a felony conviction, there is a right to a hearing to introduce evidence in mitigation of punishment.

State of West Virginia ex rel. Timothy N. Barber v. The Honorable Danny O. Cline, as Judge of the Fourteenth Judicial Circuit, No. 19457 (W. Va. March 22, 1990) (McHugh, J.): 182 W.Va. 669, 391 S.E.2d 359:

Where a Kanawha County lawyer was appointed to represent an indigent criminal defendant in Braxton County, in which county such lawyer had made no prior appearance, the Court held that where there is no public defender office, attorneys may ordinarily be appointed for indigent criminal defendants only in the following sequence: (1) a voluntary member of the local panel of attorneys; (2) a voluntary member of the regional panel of attorneys; (3) any public defender office in an adjoining circuit which agrees to the appointment; and, (4) qualified private attorneys from in-circuit or out-of-circuit. Moreover, the Court directed the Public Defender Corporation to assist each circuit to assist in the development of local and regional panels, as well as a statewide list of qualified private attorneys to be appointed when the first three alternatives are exhausted. Finally, the Court held that out-of-circuit lawyers who themselves, or whose partners or associates have never practice law in a particular circuit, should not be appointed to represent indigents in eligible proceedings in such circuit.

Roy E. Hicks v. Amos C. Wilson, No. 19137 (W. Va. January 25, 1990) (Neely, C.J.): 182 W.Va. 660, 391 S.E.2d 350:

Although a fee agreement between a claimant and his counsel, which did not impose a cap on attorney fees of 25% of "any and all awards of benefits," predated a statute imposing a cap of 25% of 208 weeks of benefits, the Court held that such statute did not constitute an unlawful impairment of contracts because the parties were on notice that the field in which they were contracting, i.e., workers' compensation, was subject to close regulation.

State ex rel. Jay Montgomery Brown, Prosecuting Attorney of Marion County v. Hon. Rodney B. Merrifield, Judge of the Circuit Court of Marion County, and Frank C. Mascara, Special Prosecuting Attorney of Marion County, No. 19361 (W. Va. January 25, 1990) (Neely, C.J.): 182 W.Va. 519, 389 S.E.2d 484:

Where a circuit judge sua sponte appointed a special prosecutor to present "certain cases" to a grand jury, the Court held that such appointment violated W. Va. Code § 7-7-8, which limits such appointments to specific cases in which the elected prosecutor is disqualified.

Paula D. Cunningham v. The Honorable A.L. Sommerville, Jr., and the Honorable Danny O. Cline, Judges of the Fourteenth Judicial Circuit Court of West Virginia; William C. Martin, Prosecuting Attorney of Braxton County, West Virginia; and Richard A. Facemire, Prosecuting Attorney of Clay County, West Virginia, No. 19273 (W. Va. December 20, 1989) (McHugh, J.): 182 W.Va. 427, 388 S.E.2d 301:

Where corporate counsel was appointed to represent indigent criminal defendants, the Court held that full-time house counsel who is forbidden from engaging in the separate practice of law may decline appointment to represent indigents on the ground that such representation "is likely to result in an unreasonable financial burden" under Rule 6.2(b) of the Rules of Professional Conduct.

State of West Virginia ex rel. H.K. Porter Company, Inc. v. Honorable Sam White, Judge of the Circuit Court of Pleasants County, No. 19150 and State of West Virginia ex rel. Steven F. Wright v. Honorable Sam White, Judge of the Circuit Court of Pleasants County, No. 19151 (W. Va. October 19, 1989) (Brotherton, C.J.): 182 W.Va. 97, 386 S.E.2d 25:

Where a Maine lawyer sought admission pro hac vice in 114 asbestos-related actions pending in the Circuit Court of Pleasants County, the Court held that (1) pro hac vice admissions shall ordinarily be granted where a court is satisfied that the applicant has fully complied with the requirements of Rule 8(b) of the Rules for Admission to the Practice of Law; (2) the "numerous or frequent" provision of Rule 8(d) of the Rules for Admission to the Practice of Law should not be interpreted to defeat a pro hac vice admission where the applicant is engaged in a highly specialized area of law and his or her involvement in this State is limited to that area of expertise; (3) where there is evidence of misconduct or procedural abuses by the attorney seeking pro hac vice admission, courts may deny such admission; and, (4) unless released by appropriate order, the "responsible local attorney," who must be an active member in good standing of The West Virginia State Bar, must attend all proceedings with his or her pro hac vice associate.

BANKING

Patricia L. Peters v. Nanette Peters, Executrix of the Estate of John Lewis Peters, deceased, as such Executrix, and Nanette Peters, in her individual right, Don Randall Peters, John Michael Peters, and the Whitesville State Bank, a corporation, No. 21896 (W. Va. March 24, 1994) (Neely, J.): 191 W.Va. 56, 443 S.E.2d 213:

Affirming the award of summary judgment in a case challenging a bank's conduct in permitting the withdrawal of jointly-held funds by one of the co-depositors, the Court held (1) passbook presentation clauses are only to prevent withdrawal by a non-depositor and do not protect against withdrawal by co-depositors; (2) banks are not required to inform joint depositors about actions of other joint depositors; and (3) boilerplate recitals of the obligation to present passbooks or surrender endorsed certificates at the time of withdrawal are no more than general statements of bank policy and create no substantive rights.

FirstBank Shinnston, a West Virginia banking corporation v. West Virginia Insurance Company, a corporation; and Frank W. Maley, Jr., No. 19760 (W. Va. July 25, 1991) (McHugh, J.): 185 W.Va. 754, 408 S.E.2d 777:

Where trial court granted summary judgment in favor of a lender whose interest as a named mortgagee on a fire insurance policy was deleted by the insurer after an envelope was returned from the lender to the insurer marked "no record," the Court affirmed, holding that if a fire insurance contract includes a standard mortgage clause naming as mortgagee the lender under a deed of trust executed by the property owner to secure a debt owing on the property, the mortgagee has an independent contract with the insurer, as if the lender had taken out a separate policy, and is deemed to be an insured to the extent of the balance due it from the property owner.

Sherwood Sparks, Sydney Larrick, Sara Otto, Nancy Straub, Jim Parker, Howard Earehart, Shirley Minter and Tom Stone, Trustees of the Beckley United Methodist Temple of Beckley v. Farmers Federal Savings and Loan Association, a federally chartered savings and loan association, No. 19428 (W. Va. July 20, 1990) (Brotherton, J.): 183 W.Va. 315, 395 S.E.2d 559:

Accepting a lender's argument that its borrower was uninjured by the withdrawal of a loan commitment because the borrower eventually secured a substitute loan at a lower rate of interest, the Court held that where a lender breaches a loan commitment agreement, any commitment fees paid by the borrower to secure the loan are recoverable.

Gary C. Milner v. Garfield H. Milner, Jr. and The Montgomery National Bank, No. 19251 (W. Va. July 12, 1990) (Workman, J.): 813 W.Va. 273, 395 S.E.2d 517:

In rejecting a claim against a bank by a plaintiff whose brother used a power of attorney to empty their dying father's savings account, the Court held that absent circumstances which might place a reasonably prudent bank on notice that additional inquiry should be made in the execution of its fiduciary obligations to its account-holder, the bank may rely upon the terms of the power of attorney to discern the authority of the holder to withdraw funds. Moreover, the Court held that certification of a check by a bank does not constitute a representation that the purpose for which the check was drawn is lawful or known by the bank.

BANKRUPTCY

David C. Anderson, Jr., individually and as Executor of the Estate of Charlotte Lee Anderson, deceased v. Ricky A. Robinson, and H&H Industrial, Inc., a corporation and CNA, AKA Continental National American Insurance Company, CNA, AKA Continental Columbia Casualty Company, and Gibraltar Casualty Company, No. 19839 (W. Va. July 2, 1991) (McHugh, J.): 186 W.Va. 92, 411 S.E.2d 35:

After obtaining a default judgment on the issue of liability against a corporation that later filed a bankruptcy petition, the plaintiff proceeded to trial on the issue of damages without first obtaining relief from the automatic stay provisions of 11 U.S.C. 362(a) (1). When the bankruptcy court subsequently ruled that the plaintiff could proceed against the tortfeasor to the extent insurance proceeds were available, the Court affirmed, holding that a plaintiff who obtains a judgment against a tortfeasor who files for bankruptcy protection is not precluded from proceeding in state court against the tortfeasor's insurer to satisfy the judgment to the extent of the tortfeasor's available insurance coverage.

CHOICE OF LAWS

State of West Virginia ex rel. Herbert Elish, et al. v. Honorable Ronald E. Wilson, Judge of the Circuit Court of Hancock County; Larry G. Godich, et al., No. 21752 (W. Va. July 22, 1993) (Brotherton, J.): 189 W.Va. 739, 434 S.E.2d 411:

Apparently interpreting both Delaware and West Virginia law, the Court affirmed the right of employee stock ownership plan [ESOP] participants to bring a shareholder derivative suit against a Delaware corporation, holding that (1) the law of the state of incorporation determines who can institute who can bring a shareholders derivative suit, and (2) employee stock ownership plan participants are shareholders within the meaning of Section 303 of the Restatement(2d) of Conflicts.

Roger Nadler, Executor of the Estate of James A. Schoettkner and Administrator of the Estate of Sara R. Schoettkner, etc., et al. v. Liberty Mutual Fire Insurance Company, No. 21004 (W. Va. November 13, 1992) (Miller, J.): 188 W.Va. 329, 424 S.E.2d 256:

Reaffirming its holding in Lee v. Saliga, 179 W. Va. 762, 373 S.E.2d 345 (1988), and refusing to apply West Virginia underinsurance law to an Ohio policy, the Court held (1) the fact that the substantive law of another jurisdiction differs from or is less favorable than the law of the forum state does not, by itself, demonstrate that application of the foreign law under recognized conflict of law principles is contrary to the public policy of the forum state and (2) where a choice of law question arises with regarding to interpretation of the coverage provisions of an insurance policy executed in another state, the public policy considerations are to be addressed by application of the "more significant relationship" test of Lee v. Saliga, supra.

Daphne Colleen Pasquale, Personal Representative of the Estate of Michael David Pasquale v. Ohio Power Company, an Ohio corporation, Central Operating Company, a West Virginia corporation; and Gallia Refrigeration, Inc., a/k/a Pasquale Electric Company, an Ohio corporation, No. 20264 (W. Va. May 15, 1992) (Miller, J.): 187 W.Va. 292, 481 S.E.2d 738:

Affirming a $6.2 million verdict in a wrongful death case arising from the electrocution of an Ohio employee at a West Virginia power plant, but denying the power company and general contractor's attempt to seek contribution from the independent contractor for whom the employee worked, the Court followed Ohio law, holding that (1) comity is a court-created doctrine by which a forum court may give the laws accorded by another state effect in the subject litigation; (2) comity is founded upon principles of harmony and uniformity among coequal states, of the reasonable expectations of parties who engage in multistate activity, and of compatibility of the laws of the forum and other state; (3) W. Va. Code § 23-2-1(c) makes the compensation law of another state the exclusive remedy against the employer for a nonresident employee who covered by compensation law of another state and who injured while temporarily working in West Virginia; and (4) a foreign corporation not covered by West Virginia's workers' compensation law, but covered by the compensation law of another state, who temporarily employs a nonresident who is injured in West Virginia, is immune from liability in an action for contribution by a joint tortfeasor.

Liberty Mutual Insurance Company v. Triangle Industries, Inc., and Triangle PWC, Inc. v. Wausau Insurance Companies and Employers Insurance of Wausau; New Jersey Property-Liability Guaranty Association, on behalf of Ideal Mutual Insurance Company, in Liquidation, and Zurich-American Insurance Company, Severally and in the Alternative, No. CC999 (W. Va. February 21, 1990) (Brotherton, J.): 182 W.Va. 580, 390 S.E.2d 562:

In a certified proceeding from federal district court presenting a choice of laws question regarding which law governed interpretation of an insurance policy executed in New Jersey to a New Jersey corporation with a West Virginia plant for alleged pollution which occurred when toxic waste generated from the West Virginia plant was deposited in an Ohio landfill, the Court held that New Jersey law controlled because: (1) the insurance contract was entered into in New Jersey; (2) no other state had a more significant relationship to the parties or the transaction; and, (3) the law of New Jersey was not contrary to the public policy of the State of West Virginia.

COLLATERAL ESTOPPEL

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

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

Andrew Haba, Janet Lowry Haba, as Administrators of the Estate of Andrew J. Haba v. The Big Arm Bar and Grill, Inc., et al., No. 22706 (W. Va. March 1, 1996) (Albright, J.):

Affirming the award of summary judgment where an earlier trial involving slightly different parties resulted in the allocation of more than fifty percent fault to the plaintiffs' decedent arising from the same accident, the Court held that (1) in the absence of a claim of inadequate representation, parties who resist consolidation of separate actions involving identical factual issues are bound by factual determinations made in those separate actions and are estopped from relitigating those issues and (2) where a jury has determined a party's comparative fault in relation to all persons whose negligence contributed to a particular event, and such party's negligence exceeds the combined negligence of other persons involved in the event, such party is barred from recovering damages in a subsequent action.

State of West Virginia v. Susan Miller, No. 22571 (W. Va. May 18, 1995) (Cleckley, J.): 194 W.Va. 3, 459 S.E.2d 114:

Rejecting a claim that the State was collaterally estopped from a criminal prosecution following the defendant's successfuly employee grievance arising from the same incident forming the basis for the criminal prosecution, the Court held (1) collateral estoppel will bar a claim if four elements are met: (i) the issue previously decided is identical, (ii) the previous decision is final, (iii) the party against whom the doctrine is invoked was a party in the prior action or is in privity with a party in the prior action, and (iv) the party against whom the doctrine is involved had a full and fair opportunity to litigate the issue in the prior action; (2) relitigation of an issue is not precluded by collateral estoppel if the procedures in the earlier action were designed to achieve a prompt, simple, and inexpensive determination of small claims; and (3) collateral estoppel does not apply to a subsequent action applying a different legal standard or employing substantially different procedural rules, even if the other elements are satisfied.

Leroy M. Rashid and Richard C. Rashid v. Schenck Construction Company, Inc., and Schenck & Associates, Inc., a Kentucky corporation, United States Fidelity & Guaranty Company, Intervenor, No. 21300 (W. Va. April 23, 1993) (Brotherton, J.): 190 W.Va. 363, 438 S.E.2d 543:

Where developer filed suggestion against contractor's bonding company after the contractor's default, the Court held (1) an arbitration agreement, when it is part of a general contract, can be incorporated into a bond, by reference, to the general contract; (2) a suggestion action may be a proper method to collect on a performance bond obligation if the surety is liable or indebted to the judgment debtor; and (3) although a surety is collaterally estopped from relitigating matters decided in an arbitration proceeding under such circumstances, the surety may raise whatever other defenses that may be available in subsequent enforcement proceedings.

Mildred Walden v. Jay M. Hoke and Fredrick G. Staker, III, No. 21277 (W. Va. April 23, 1993) (Brotherton, J.): 189 W.Va. 222, 429 S.E.2d 504:

Affirming the dismissal of a malpractice action premised upon joint representation in an earlier divorce proceeding in which the trial court rejected an identical attack on a property settlement agreement, from which the plaintiff did not appeal, the Court held that although it is improper for a lawyer to represent both the husband and wife at any stage of a divorce proceeding and to prepare an answer for the defendant even if the divorce is simple and uncontested, a litigant cannot relitigate an issue in a malpractice action previously decided in the earlier proceeding from which the alleged malpractice arose.

COMMERCIAL PAPER

Ralph R. Young, Jr., and Marion M. Young v. Sheryl Sodaro, No. 22349 (W. Va. February 21, 1995) (McHugh, J.): 193 W.Va. 304, 456 S.E.2d 31:

Where promissory note in question did not contain a prepayment clause, the Court held that under the rule of perfect tender in time, a debtor, absent statutory or contractual language to the contrary, has no right to prepay a promissory note secured by a deed of trust prior to the date of maturity.

N. Joe Rahall v. Nicholas Tweel, No. 20102 (W. Va. November 1, 1991) (Miller, C.J.): 186 W.Va. 136, 411 S.E.2d 461:

Reversing a trial court decision that a party who signs a promissory note, but receives no direct benefit, is an accommodation party, and not liable to the principal, the Court held (1) a party's status on commercial paper is determined solely from the face of the instrument under W. Va. Code § 41-1-101, et seq., with any ambiguity resolved in favor of the party's status as an endorser; (2) because a party's status on commercial paper can be determined from usage or custom, a signature in the lower right hand corner of an instrument may be deemed an intent to sign as the maker of a note or the drawer of a draft; (3) although the accommodation status of a party may be established by parol evidence against the party accommodated, parol evidence is not admissible, under W. Va. Code § 46-3-415(3), against a holder in due course without notice of the accommodation; and, (4) the party asserting status as an accommodation party has the burden of proof, with the factors to be considered including the party's stated purpose in signing the note, the party's involvement in negotiating the financing, the purpose of the loan, whether the party received any benefit from the transaction, and whether the party's signature was necessary to secure the loan.

COMMON CARRIERS

Solid Waste Services of West Virginia v. Public Service Commission and Halt Out-of-State Garbage, Inc., No. 20996 (W. Va. July 15, 1992) (Neely, J.): 188 W.Va. 117, 422 S.E.2d 839:

Reversing a decision of the PSC to deny transfer of a solid waste carrier permit on the basis of its determination that the transferee was "unfit" in light of misconduct occurring in conduction with the operation of similar businesses in other jurisdictions by affiliated companies, the Court held that a carrier is "fit and proper" under the relevant statute when it has the experience, equipment, insurance, and financial ability to conduct the business it is being transferred. On another issue, the Court held that the PSC is without authority to regulate landfills, even where the landfill is owned by the same company that operates the local solid waste transportation business.

West Virginia AAA Statewide Association v. Public Service Commission and West Virginia Towing and Recovery Association, No. 19941 (W. Va. December 11, 1991) (Workman, J.): 186 W. Va. 287, 412 S.E.2d 481:

Affirming a statutory interpretation by the Public Service Commission, the Court held invalid agreements between automobile clubs and towing companies that grant fixed percentage fee reductions for each customer referral. As a practical matter, the Court stated that such discounts could legally be incorporated into the rate structure approved by the Public Service Commission upon proper application.

COMPROMISE AND SETTLEMENT

Billie Burgess v. Mark Porterfield and State Farm Mutual Automobile Insurance Company v. SuperAmerica Group, Inc., dba SuperAmerica Corporation, No. 22956 (W. Va. March 11, 1996) (McHugh, C.J.): ___ W. Va. ___, 469 S.E.2d 114:

Affirming a circuit court's refusal to reduce a punitive damages verdict by the amount of an earlier settlement, the Court held that defendants against whom awards of compensatory and punitive damages are rendered are entitled to a reduction of the compensatory damages award, but not the punitive damages award, by the amount of any good faith settlement previously made with the plaintiff by other jointly liable parties.

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

Where claimant negotiated insurance check which stated, "[f]or full settlement of all claims," endorsement which stated, "[d]eposited under protest," the Court held that if a check is tendered bearing the words "payment in full" or of similar purport, the payee may either accept the check as accord and satisfaction or return the check to the payor. On another issue, the Court agreed that continued settlement negotiations after the check was negotiated did not constitute a waiver of accord and satisfaction, holding that whether parties altered their original contract depends upon whether there was mutual consent.

State of West Virginia ex rel. McDowell County Board of Education v. Honorable Booker T. Stephens, Judge of the Circuit Court of McDowell County, Melanie Campbell Church, and Wendy Emazetta Burks, No. 22050 (W. Va. July 20, 1994) (Workman, J.): 191 W.Va. 711, 447 S.E.2d 912

Denying a writ of prohibition against a plaintiff's assertion of a belated cause of action against a third-party defendant who settled with the third-party plaintiff, the Court held that a good faith settlement of a contribution claim, although resolving such claim between joint tortfeasors, does not bar the plaintiff from subsequently asserting a direct cause of action against the settling joint tortfeasor unless such tortfeasor obtained a release from the plaintiff at the time of settlement.

Walter E. Hamilton, Executor of the Estate of David L. Hamilton, and Walter E. Hamilton, duly appointed Committee for Joan A. Hamilton v. John W. Harper, Haskell Burke and Paul D. Waugh, Inc., a corporation, d/b/a Ragtime Club, and Nationwide Mutual Insurance Company, No. 19710 (W. Va. April 25, 1991) (Workman, J.): 185 W. Va. 51, 404 S.E.2d 540:

Where an insurance company's offer of settlement was accepted after plaintiffs' counsel unilaterally learned that a federal district court was ruling that there was no coverage, the Court reversed the trial court's order to enforce the settlement, holding that where the consideration for an offer of settlement is dismissal of a civil action, the agreement is not enforceable when acceptance is made by one party with the unilateral knowledge that a dispositive ruling has been issued which fully resolves the litigation.

CONDEMNATION

James K. Sexton and Barbara Sexton v. Public Service Commission and Southern Jackson County Public Service District, a public utility, No. 21147 (W. Va. November 13, 1992) (Miller, J.): 188 W.Va. 305, 423 S.E.2d 914:

Rejecting an attempt by homeowners to block Public Service Commission certification of a sewage treatment facility, the Court held that the Public Service Commission has no duty to review and decide issues inherent in collateral eminent domain proceedings.

Potomac Valley Soil Conservation District, a public body under the law of the State of West Virginia v. Wanda E. Wilkins, et al., No. 20727 (W. Va. November 12, 1992) (Brotherton, J.): 188 W.Va. 275, 423 S.E.2d 884:

Reversing an order limiting the area which a soil conservation district could take for purposes of a water impoundment project, the Court held that a court's inquiry into the scope of the power of eminent domain is limited solely to the question of whether it is being exercised in order to provide a public service.

CONSTITUTIONAL

State of West Virginia ex rel. the County Commission of Boone County, a public body corporate of the State of West Virginia v. Ed Cooke, Clerk of the County Commission of Boone County, No. 23375 (W. Va. July 17, 1996) (McHugh, C.J.):

Invalidating the Tax Increment Financing Act [TIFA], W. Va. Code § 7-11B-1, et seq., which permitted the issuance of "tax increment bonds" by county commissions and private developers in order to fund infrastructure and other public improvements, such as water projects, to be paid through the application of additional property taxes generated by the increase in property value attendant to the project funded, the Court held (1) tax increment bonds issued pursuant to the TIFA, would create a "debt" within the meaning of W. Va. Const. art. X, § 8, and (2) because the TIFA does not provide for "the collection of a direct annual tax on all taxable property . . . separate and apart from and in addition to all other taxes for all other purposes" in accordance with W. Va. Const. art. X, § 8, in order to pay the principal and interest on tax increment bonds issued, it is unconstitutional.

State of West Virginia ex rel. Thornton Cooper v. Honorable Gaston Caperton, Governor of the State of West Virginia, et al., No. 23059 (W. Va. February 29, 1996) (Cleckley, J.): ___ W. Va. ___, 470 S.E.2d 162:

Affirming a judgment validating a constitutional amendment despite the Secretary of State's failure to publish its text in accordance with relevant constitutional and statutory provisions mandating such publication where a summary of the amendment was published, the Court held that (1) ostensible findings of fact, which entail the application of law or constitute legal judgments which transcend ordinary factual determinations, are reviewed de novo; (2) the sufficiency of the information presented at trial to support a finding that a constitutional predicate has been satisfied presents a question of law; (3) to preserve an issue for appeal, a party must articulate it with sufficient clarity to alert the trial court of the nature of the claimed defect; (4) the purposes of the requirements regarding proposed constitutional amendments contained in W. Va. Const. art. XIV, § 2 are (i) to ensure, through the endorsement of a legislative supermajority and the support of a majority of those voting in a statewide referendum, that constitutional amendments reflect a true and broad-based political consensus and (ii) to guarantee such a referendum may be held only after the legislature has taken steps to inform the electorate fully and accurately about the proposed amendment; (5) no amendment to the West Virginia Constitution is valid unless (i) a duly-recorded concurrence of two-thirds of the members of each house is obtained, (ii) the proposed amendment is submitted to the electorate, (iii) the amendment is ratified by a majority of those voting in a statewide referendum, (iv) the people are informed about the proposed amendment in substantial compliance with the directives of W. Va. Const. art. XIV, § 2 and in a manner sufficient to permit the voters to make up their minds, and (v) the absence of evidence that the State's voter education efforts misled or confused voters if strict compliance with W. Va. Const. art. XIV, § 2, did not occur; (6) when the State fails to publish the full text of a proposed amendment in a newspaper in every county but instead publishes a summary of the amendment, the results of the referendum will not be set aside if (i) the summary fully, fairly, and accurately describes the amendment, (ii) the summary is, in fact, more understandable than the actual text of the amendment, (iii) the summary was adopted by the Legislature, (iv) there was no probable evidence that the summary misled the voters or reasonably could be read to have had a misleading effect, and (v) there was no probative evidence that publication of the full text of the amendment would have made any difference in the outcome of the referendum; and (7) any departures from W. Va. Const. art. XIV, § 2 will be strictly reviewed.

In re: Application of Teresa Jane Dailey for State License to Carry a Concealed, Deadly Weapon, No. 22964 (W. Va. November 16, 1995) (Recht, J.): 195 W.Va. 330, 465 S.E.2d 601:

Invalidating the delegation to circuit courts of licensing authority for concealed weapons permits, the Court held (1) pursuant to W. Va. Const. art. V, § 1, the legislature cannot commit to the judiciary powers which are primarily legislative; (2) the regulation and control of dangerous and deadly weapons is an exercise of police power within the province of the legislative branch; (3) W. Va. Code § 61-7-4 confers an insufficient amount of judicial discretion with regard to the issuance of concealed weapons permits to avoid conflict with W. Va. Const., art. V, § 1, which provides, "The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others;" and (4) its invalidation of this provision is to have only prospective application.

State of West Virginia ex rel. Laura Meadows and Danny Martin v. Ken Hechler, Secretary of State of West Virginia; Earl Ray Tomblin, President of the Senate of West Virginia; and Robert C. Chambers, Speaker of the House of Delegates of West Virginia, No. 22875 (W. Va. July 19, 1995) (Workman, J.): 195 W.Va. 11, 462 S.E.2d 586:

Invalidating W. Va. Code § 29A-3-12(b), which permitted legislative veto of proposed administrative regulations where, despite federal statute and federal court order, the Legislature failed to approve or reject proposed nursing home regulations, the Court held such statute to violate W. Va. Const. art. V, § 1, by impermissibly encroaching upon the executive branch's obligation to enforce the law.

State of West Virginia ex rel. Glen B. Gainer, III, Auditor of the State of West Virginia v. West Virginia Board of Investments, No. 22574 (W. Va. May 31, 1995) (Workman, J.): 194 W.Va. 143, 459 S.E.2d 531:

Disallowing the investment of public employee pension funds in corporate securities, the Court held that (1) until public employee pension funds are paid as benefits, the State has a beneficial ownership interest arising from a statutory trust relationship and (2) W. Va. Code § 12-6-9(j), granting authority to the consolidated public employees retirement system board to invest in corporate stock, is violative of W. Va. Const. art. X, § 6, which prohibits the State from becoming a "stockholder in any company or association."

State of West Virginia ex rel. West Virginia State Board of Education v. Glen B. Gainer, III, State Auditor, and Larrie Bailey, State Treasurer, in their official capacities, No. 22549 (W. Va. December 21, 1994) (Cleckley, J.) 192 W.Va. 417, 452 S.E.2d 733:

Rejecting an attempt by the state school board to override a legislative decision regarding the salary of the state superintendent of schools, the Court held that the legislature, in cases not provided for in the state constitution, shall proscribe, by general laws, the terms of office, powers, duties, and compensation of all public officers and agents, and the manner in which they shall be elected, appointed, and removed.

Robert Carl Crain, et al. v. Donald E. Bordenkircher, Warden, et al., No. 16646 (W. Va. December 15, 1994) (Workman, J.): 193 W.Va. 63, 454 S.E.2d 108:

Reversing a trial court's award of early parole consideration for prisoners incarcerated at the West Virginia Penitentiary on and after July 1, 1992, the date upon which it was originally ordered to be closed, the Court held that inherent in its duty to take such actions as are necessary to enforce constitutional principles is supervision of the implementation of its mandates thereunder, including the revision or modification of subsequent orders entered by lower tribunals.

State of West Virginia ex rel. James Lawrence, Commissioner of the West Virginia Division of Tourism and Parks v. Chuck Polan, Cabinet Secretary, Department of Administration, No. 22590 (W. Va. December 12, 1994) (Miller, J.): 192 W.Va. 629, 453 S.E.2d 612

Rejecting a proposal for issuing bonds to fund improvements at Stonewall Jackson State Park, the Court held that although W. Va. Code § 5B-1-13b authorizes the commissioner of tourism and parks to issue revenue bonds which are to be liquidated from a special fund derived from revenues from park recreational facilities, such bonds violate W. Va. Const. art. X, § 4, where the facilities operate at a net deficit and only the use of general revenue funds will permit liquidation of the bonds.

State of West Virginia ex rel. Darrell E. Holmes, Clerk of the Senate of West Virginia, and Donald L. Kopp, Clerk of the House of Delegates of West Virginia v. Glen B. Gainer, III, Auditor of the State of West Virginia, et al., No. 22226 (W. Va. July 20, 1994) (Miller, J.): 191 W.Va. 686, 447 S.E.2d 887:

Upholding a legislative pay raise despite procedural irregularities, the Court held that although W. Va. Const. art. VI, § 33 precludes the Citizens Legislative Compensation Commission from submitting its resolution on compensation and allowances to the Legislature except on an quadrennial basis beginning with the 1971 legislative session, based upon general principles of retroactivity, such holding does not invalidate the legislative compensation and allowances provisions contained in House Bill 4031.

State ex rel. Clarksburg Municipal Building Commission and the City Council of the City of Clarksburg v. David E. Spelsberg, Secretary of the Clarksburg Municipal Building Commission, No. 22312 (W. Va. July 18, 1994) (Neely, J.): 191 W.Va. 553, 447 S.E.2d 16:

Approving plans for a city to construct a new municipal building using revenue bonds payable from rents paid by the city to its building commission, the Court held that W. Va. Const. art. X, § 8 does not prohibit a municipal building commission from issuing revenue bonds that are payable from rents from the municipality, when the contract is for a term of thirty years, permitting periodic payment as services are furnished, with nonbinding cancellation clauses such that there is no present indebtedness for the aggregate of all installments, and the contract can be terminated at the end of any fiscal year if the munipality decides not to appropriate funds.

State of West Virginia ex rel. Richard A. Robb, Chairman, Kanawha County Republican Executive Committee v. Honorable W. Gaston Caperton, III, Governor, State of West Virginia, No. 22310 (W. Va. July 8, 1994): 191 W.Va. 492, 446 S.E.2d 714:

Rejecting an attempt to compel an election to fill a circuit judge vacancy which occurred after the primary, the Court held that because a specific constitutional provision will be given precedence over a general constitutional provision relating to the same subject matter where the two cannot be reconciled, W. Va. Const. art. VIII, § 7, relating to the manner of filling a vacancy in the office of justice of the supreme court of appeals or judge of a circuit court takes precedence over the more general provision of W. Va. Const. art. IV, §§ 7 and 8, relating to the mannr of filling vacancies in state and county offices.

Putnam County Fire Service Board, Inc. v. Jack Kelly and Josephine Kelly, et al., No. 22044 (W. Va. July 8, 1994) (Workman, J.): 192 W.Va. 37, 449 S.E.2d 508:

Where approximately 5,000 voters signed referendum petition, about 500 less than were required, within 15 days after expiration of publication of an ordinance adopting a county fire service fee, the Court nevertheless upheld the validity of the fee, holding that W. Va. Code § 7-17-12, which provided that such petitions be filed within 15 days, but which was later amended to extend such time to 45 days, was constitutional.

State of West Virginia ex rel. Henry R. Marockie, State Superintendent of Schools and President of the West Virginia School Building Authority v. Charles H. Wagoner, Secretary of the West Virginia School Building Authority, No. 22214 (W. Va. June 15, 1994) (McHugh, J.): 191 W.Va. 458, 446 S.E.2d 680:

In the final installment of a trilogy of cases, the Court approved the use of lottery revenues to retire bonds issued to construct school buildings, holding that the school building debt service fund, described in W. Va. Code § 29-22-18, as consisting of monies allocated from the net profits of the lottery, may be used to liquidate the School Building Authority's revenue bonds without violating W. Va. Const. art. X, § 4, because the monies are a new revenue source not treated as part of the general revenue of the State.

Darrell V. McGraw, Jr., in his official capacity as Attorney General of West Virginia v. Honorable Gaston Caperton, in his official capacity as Governor of the State of West Virginia, et al., No. 22011 (W. Va. May 19, 1994) (Brotherton, C.J.): 191 W.Va. 528, 446 S.E.2d 921:

In a case involving the legality of a contract for the purchase of computers and technical support for the State's school system, the Court held that a one-year contract with a multi-year, no-bid, non-binding renewal option at the State's discretion, does not violate W. Va. Const. art. X, § 4 or W. Va. Code § 12-3-17.

State of West Virginia ex rel. Council of the City of Charleston; Linda Nielson; and West Virginia Waste Services, Inc. v. Kent Strange Hall, as Mayor of the City of Charleston, No. 22067 (W. Va. February 18, 1994) (McHugh, J.): 190 W.Va. 665, 441 S.E.2d 386:

Affirming a city's long-term plan for operation of its landfill by a private company, the Court held that (1) W. Va. Const. art. X, § 8 does not preclude a contract for a term of 25 years whereby a city is obligated to pay a fee for solid waste disposal when that fee comes from a special fund collected by the city for such solid waste disposal, and (2) an agreement which gives a city the option to purchase improvements made to its solid waste facility at certain years of the agreement or when the city decides to prematurely terminate the agreement does not violate W. Va. Const. art. X, § 8 or W. Va. Code § 11-8-26, because the city has the sole discretion to determine whether it will purchase the improvements.

Women's Health Center of West Virginia, Inc., et al. v. Ruth Ann Panepinto, Ph.D., etc., et al., Nos. 21924, 21925 and 21926 (W. Va. December 17, 1993) (Workman, C.J.) 191 W.Va. 436, 446 S.E.2d 658:

Declaring unconstitutional a statute which limited state funding for abortions to those involving rape, incest, death or serious bodily injury to the mother, or severe birth defects, the Court held that the state constitution requires that if funds are expended for any medical services for the poor, funds must be provided for all abortions for the poor, including elective abortions.

State of West Virginia ex rel. Henry R. Marockie, as State Superintendent of Schools and as President of the School Building Authority of the State of West Virginia v. Charles H. Wagoner, as Secretary of the School Building Authority of the State of West Virginia; William S.E. Winkler and Diane Hinkle, Intervenors, No. 21952 (W. Va. December 13, 1993) (Miller, J.): 190 W.Va. 467, 438 S.E.2d 810:

Rejecting a legislative scheme to dedicate a portion of the sales tax to retire bonds to fund the building of schools, the Court held (1) the legislature may not designate funds that will be used to liquidate a revenue bond issue from a tax source that flows into the general revenue fund without violating W. Va. Const. art. X, § 4; (2) if the legislature creates a new tax source or increases the amount to be paid on an existing tax account, this new or increase amount may be used to liquidate revenue bonds without violating W. Va. Const. art. X, § 4; (3) the legislature may use an existing special revenue source to liquidate revenue bonds without violating W. Va. Const. art. X, §4, as long as such source has not traditionally been directed into the general revenue fund; (4) because, under the newest scheme, school building bonds were to be liquidated with a portion of existing general revenue, new debt was created in violation of W. Va. Const. art. X, § 4; and (5) W. Va. Const. art. X, § 6a applies only to counties, municipalities, or other political subdivisions, not to the state or its agencies.

State of West Virginia ex rel. Fahlgren Martin, Inc. v. Darrell V. McGraw, Jr., Attorney General of the State of West Virginia; Chuck Polan, Secretary of the Department of Administration of the State of West Virginia; and Ron Riley, Director of the Purchasing Division of the Department of Administration of the State of West Virginia, No. 21820 (W. Va. November 23, 1993) (Brotherton, J.): 190 W.Va. 306, 438 S.E.2d 338:

Delineating the scope of the Attorney General's authority to review state contracts, the Court held (1) W. Va. Code § 5A-3-13 grants the attorney general power to approve certain contracts only "as to form;" (2) if a contract is legal, the attorney general must approve the contract, regardless of any personal misgivings, but may communicate his or her concerns to the division of purchasing; (3) the attorney general may not postpone approval of a contract pending a trial, investigation, or other proceeding; (4) the attorney general has no investigative powers in connection with his or her review of a contract; and (5) the term "form" as used in W. Va. Code § 5A-3-13 does not include any matters extrinsic to the written contract, but means only the legality of all matters contained therein as it relates to the constitution, statutes, and the law of contract.

State of West Virginia ex rel. Mountaineer Park, Inc., a West Virginia corporation v. Charles Polan, Secretary of the Department of Administration, et al., No. 21767 and State of West Virginia ex rel. West Virginia State Lottery Commission v. Charles Polan, Secretary of the Department of Administration, et al., No. 21768 (W. Va. October 28, 1993) (McHugh, J.): 190 W.Va. 276, 438 S.E.2d 308:

Invalidating agency approval of video lottery terminals at a horse track, the Court held (1) only lottery operations which are regulated, controlled, owned and operated in the manner provided by general laws enacted by the West Virginia Legislature may be properly conducted in accordance with the exception to the general prohibition against lotteries in W. Va. Const. art. VI, § 36; (2) delegation of legislative authority to an executive agency is constitutional only if adequate statutory guidance is given by the legislature to the agency; and (3) a general delegation of authority to the lottery commission authorizing "electronic video lottery systems" was inadequate to permit the promulgation of lottery rules and regulations permitting the installation of video lottery terminals at the horse track.

William S.E. Winkler and Diane Hinkle v. State of West Virginia School Building Authority, and United National Bank, as Trustee, etc., No. 21829 (W. Va. July 22, 1993) (Miller, J.): 189 W.Va. 748, 434 S.E.2d 420:

Prohibiting the future issuance of bonds by the school building authority as violative of W. Va. Const. art. X, § 4, which provides, "No debt shall be contracted by this State, except to meet casual deficits in the revenue, to redeem a previous liability of the State, to suppress insurrection, repel invasion or defend the State in time of war," the Court held (1) questions of constitutional construction are generally governed by the same principles as for statutory construction; (2) bonds issued after the election procedures contained in W. Va. Const. art. XIV, § 2, override the specific limitations of W. Va. Const. art. X, §§ 4 and 6; (3) W. Va. Const. art. X, § 4 restricts the creation of long-term debt by the State through revenue bonds or other obligations; (4) W. Va. Const. art. X, § 6 restricts the State from granting credit to political subdivisions and from granting credit or assuming liabilities for debts of private entities; (5) W. Va. Const. art. X, § 4 does not prohibit the State from issue revenue bonds that are to be liquidated pursuant to contracts requiring rental payments from another state agency, contracts requiring payment for necessary services like utilities, or dedicated revenue placed in a special fund; (6) based upon settled principles of retroactivity, the declaration of unconstitutionality of the scheme devised for school construction would be prospective only; and (7) because refunding or refinancing of existing bonds does not create new debt, such refunding or refinancing would not be prohibited by the ruling of unconstitutionality of the primary scheme.

State of West Virginia ex rel. Cindy Walls v. Patricia Noland, as a Magistrate of Jefferson County, and Michael D. Thompson, as Prosecuting Attorney, No. 21495 (W. Va. July 16, 1993) (Brotherton, J.): 189 W.Va. 603, 433 S.E.2d 541:

Upholding the constitutionality of the worthless check statute, the Court held that the statutory complaint form contained in W. Va. Code § 61-3-39f is constitutionally sufficient because it requires a detailed itemization of the relevant facts and provides a sufficient basis for an independent determination of whether there is probable cause to proceed with a prosecution.

Richard Lee Kincaid and Aaron Bolen, on Behalf of Themselves and All Others Similarly Situated v. R. Michael Mangum, Sheriff of Raleigh County, et al., No. 21505 (W. Va. June 10, 1993) (McHugh, J.): 189 W.Va. 404, 432 S.E.2d 74:

In a case challenging the constitutionality of jail standards which had been approved by the legislature through the use of an omnibus bill which included 44 sets of various agency rules, the Court held that unless there is a reasonable basis for grouping various matters in a single bill, and such grouping will not lead to logrolling or other deceptive consequences, the "one-object" rule of W. Va. Const. art. VI, § 30, prohibits the practice of grouping different matters in one bill. In deciding to make its ruling prospective only, however, the Court further held that when it issues an interpretation of the West Virginia Constitution that was not clearly foreshadowed, and when retroactive application would excessively burden governmental functions, the new interpretation will apply prospectively.

Contractors Association of West Virginia, a West Virginia corporation, and the Flexible Pavements Council of West Virginia, an unincorporated association v. West Virginia Department of Public Safety, Division of Public Safety, et al., No. 21519 (W. Va. March 25, 1993) (McHugh, J.): 189 W.Va. 685, 434 S.E.2d 357:

Rejecting, in part, a constitutional challenge to the transfer of highway funds to the state police based upon W. Va. Const. art. VI, § 52, which provides that certain funds may be spent only for the cost of "administration and collection" of the funds and the cost of "construction, reconstruction, repair or maintenance of public highways," the Court held that the term "maintenance" includes programs directly related to highway safety, such as road patrol, traffic control, traffic court, motorcycle safety, and motorcycle licensing, but does not include programs not directly related to highway safety, such as the construction, operation, and maintenance of state police barracks.

E.H., et al. v. Matin, et al., No. 21467 (W. Va. February 25, 1993) (Miller, J.): 189 W.Va. 102, 428 S.E.2d 523:

Reversing a decision enjoining the Department of Health and Human Resources from constructing a mental health facility in Weston, the Court held that (1) where the legislature, through the budgetary process, provides funding to build a public facility, courts are not authorized to interfere with the legislative mandate absent a constitutional or statutory impediment and (2) unless the parties could demonstrate some good cause to the contrary, the Court would abolish judicial monitoring of the state behavioral health services system.

Jarrett Printing Company v. Ronald Riley, as Director of the Purchasing Division of the Department of Administration of the State of West Virginia; Gaston Caperton, as Governor of West Virginia; and BJW Printing and Office Supplies, No. 21477 (W. Va. December 9, 1992) (Neely, J.): 188 W.Va. 393, 424 S.E.2d 738:

Applying W. Va. Const. art. VI, § 34, which provides that no legislator "shall be interested, directly or indirectly, in [the legislative printing] contract," the Court held that (1) the plain and unambiguous meaning of this constitutional provision is to prohibit a legislator from having "any interest" in a legislative printing contract; (2) a special relationship exists between husband and wife creating a mutual interest in the contracts of each; and (3) the award of a legislative printing contract to the spouse of a legislator would violate W. Va. Const. art. VI, § 34.

Daniel Lewis and Sonja Lewis v. Canaan Valley Resorts, Inc., a corporation, No. 19780 (W. Va. July 19, 1991) (McHugh, J.): 185 W.Va. 684, 408 S.E.2d 634:

In a case upholding the constitutionality of the West Virginia Ski Responsibility Act, W. Va. Code § 20-3A-1, et seq., the Court adopted a new principle of statutory construction, holding that if legislation impairs the adjudication of vested rights or availability of judicial remedies, the legislation will nevertheless withstand constitutional scrutiny if (1) a reasonably effective alternative remedy is provided, or (2) the purpose of the legislation is to "eliminate or curtail a clear social or economic problem" and is a "reasonable method of achieving such purpose."

Janet L. Gibson and Carol Holcomb v. West Virginia Department of Highways, an agency of the State of West Virginia, and William S. Ritchie, Jr., West Virginia Commissioner of Highways and his Successor as such, No. 19712 (W. Va. May 24, 1991) (Miller, C.J.): 185 W.Va. 214, 406 S.E.2d 440:

Despite rejecting a constitutional challenge to W. Va. Code § 55-2-6a, which limits to ten years the time within which a suit may be filed for deficiencies in the planning, design, or construction of an improvement to real property, the Court held that although there is a presumption of constitutionality with regard to legislation, with special deference accorded matters of economic legislation, when a legislative enactment either substantially impairs vested rights or severely limits existing procedural remedies permitting judicial adjudication of disputes, the certain remedy provision of W. Va. Const. art. III, § 17 is implicated.

David Johnson and Christinena Johnson v. Honorable Callie Tsapis, Judge of the Circuit Court of Brooke County, and David B. Cross, Prosecuting Attorney for Brooke County, No. 20477 (W. Va. December 19, 1991) (Miller, C.J.): 186 W.Va. 642, 413 S.E.2d 699:

Where West Virginia employer hired Ohio private detective to investigate allegations of employee drug use, the Court affirmed the circuit court's decision that W. Va. Code § 61-6-11, which prohibits any person "not a bona fide resident of this State" from conducting criminal or quasi-criminal investigations, violates the Privileges and Immunities Clause of Article IV, Section 2 of the United States Constitution.

State ex rel. Ira Dadisman, etc., et al. v. W. Gaston Caperton, as Governor, et al., No. 20419 (W. Va. December 17, 1991) (McHugh, J.): 186 W.Va. 627, 413 S.E.2d 684:

Where the public employees' retirement system was determined to be actuarially sound, despite past underfunding, the Court held that appropriations to correct such past underfunding were not mandated by its previous decision in Dadisman v. Moore, 181 W.Va. 779, 384 S.E.2d 816 (1989), and further that a 1990 amendment to W. Va. Code § 5-10-28, which eliminated the divisions between state and public employer accounts, did not constitute an unconstitutional impairment of contract.

Cleve Benedict, etc., et al. v. Charles M. Polan, etc., et al., No. 20116 (W. Va. December 13, 1991) (Workman, J.): 186 W.Va. 452, 413 S.E.2d 107:

Invalidating the attempted legislative transfer by supplemental appropriation of special revenue account funds to the Division of Human Services, the Court held that (1) the legislature may not amend or contradict substantive statutes through passage of a supplemental appropriations bill, and (2) W. Va. Code § 12-2-2(j) prohibits the transfer of funds for purposes other than those expressly provided relative to special revenue accounts.

Common Cause of W. Va., et al. v. Earl Ray Tomblin, et al., No. 20325 (W. Va. December 9, 1991) (Neely, J.): 186 W.Va. 537, 413 S.E.2d 358:

In a constitutional challenge to the process for adoption of the legislative budget digest, the Court held (1) because the digest does not have the force and effect of law, W. Va. Code § 4-1-18, which directs its preparation by the conferees committee on the budget, is not an unconstitutional delegation of power by the legislature; (2) despite lacking the force and effect of law, because of its practical importance to governmental operations, the process for adoption of the budget digest must observe certain requirements, including approval by the entire conferees committee on the budget at a regularly scheduled public meeting; and (3) the finance committees, their chairpersons, or the subcommittee chairpersons must record, by appropriate means, the discussions, negotiations, compromises, agreements, and votes taken in pursuit of the budget digest.

CONSUMER CREDIT/PROTECTION

State of West Virginia by and through Darrell V. McGraw, Jr., Attorney General v. Imperial Marketing, et al., and Suarez Corporation Industries, No. 22809 (W. Va. March 20, 1996) (Recht, J.):

Affirming a preliminary injunction restricting the manner and method by which a direct mail marketer may solicit customers in West Virginia, the Court held (1) on appeals from the award of a preliminary injunction, findings of fact will be reviewed under a clearly erroneous standard, conclusions of law will be reviewed under a de novo standard, and the application of the facts to the law and the decision regarding issuance of the preliminary injunction will be reviewed under an abuse of discretion standard; (2) under W. Va. Code § 46A-7-110, the Consumer Credit and Protection Act, and W. Va. Code § 46A-6D-1 to -10, the Prizes and Gifts Act, a preliminary injunction may be issued if the Attorney General has demonstrated by credible evidence that reasonable cause exists to believe the respondent is engaging in or is likely to engage in conduct sought to be restrained; (3) findings of "material misrepresentation" or "actually misleading" are unnecessary for the issuance of a preliminary injunction under the Consumer Credit and Protection Act, rather such injunction may issue based upon any misrepresentation of fact that materially induced a purchaser's decision to buy; and (4) the legislature is accorded considerable deference in restricting and regulating solicitations which are or may be deceiving or misleading even to the extent of permitting prior restraints upon deceptive solicitation.

State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General v. Scott Runyan Pontiac-Buick, Inc., etc., et al., No. 22728 (W. Va. July 19, 1995) (Cleckley, J.): 194 W.Va. 770, 461 S.E.2d 516:

Reversing an order holding the attorney general was without authority to seek relief in behalf of consumers under the Consumer Credit and Protection Act against automobile financing companies after a dealer improperly failed to remit extended warranty premiums, which passed through the financing companies, to the warranty company, the Court held that (1) the attorney general has the right to bring a civil action against an assignee to collect a refund of an excess charge imposed upon a consumer regardless of whether the assignee committed any wrong; (2) the issue of wrongdoing is only relevant under W. Va. Code § 46A-7-111(1), where civil penalties are sought against the assignee; and (3) if an assignee can establish an unintentional violation on the part of the wrongdoer, a penalty may not be imposed under W. Va. Code § 46A-7-111(1).

Chrysler Credit Corporation v. James E. Copley and Cynthia R. Copley, No. 21235 (W. Va. February 18, 1993) (Miller, J.): 189 W.Va. 90, 428 S.E.2d 313:

Where consumers sought to counterclaim against finance company under lemon law, the Court held (1) the applicable time period for filing a "lemon law" action under W. Va. Code § 46A-6A-4 is "within one year of the expiration of the express warranty term;" (2) a consumer can assert a defective product claim as a defense in a collection action pursuant to W. Va. Code § 46A-2-102, et seq.; and (3) such counterclaim can be asserted without regarding to any statute of limitations.

One Valley Bank of Oak Hill, Inc., a corporation v. Robert T. Bolen, Sr., and Judith G. Bolen, his wife, No. 21266 (W. Va. December 16, 1992) (Neely, J.): 188 W.Va. 687, 425 S.E.2d 829:

Where car buyers counterclaimed against assignee of credit agreement on the ground that dealership misrepresented a rental vehicle as a factory car, the Court held (1) when a note is created as the result of a consumer transaction, an assignee of such note, pursuant to W. Va. Code § 46A-2-102, takes the note subject to all claims and defenses, regardless of whether the assignee is a holder in due course; (2) a consumer is allowed to recover, pursuant to W. Va. Code § 46A-2-102(5), an amount not to exceed the amount owing to the assignee at the time of such assignment, plus any additional damages recoverable pursuant to W. Va. Code § 46A-5-101 for illegal, fraudulent, or unconscionable conduct; and (3) punitive damages are not available under the fraud or unconscionable conduct provisions of W. Va. Code § 46A-2-121.

Fernando Casillas and Mireille Casillas v. Tuscarora Land Company and First National Bank of Greencastle, No. 19986 (W. Va. December 19, 1991) (Brotherton, J.): 186 W.Va. 391, 412 S.E.2d 792:

Reversing a decision that the Consumer Credit and Protection Act, W. Va. Code § 46A-1-101, et seq., barred suit against a bank for alleged misrepresentations regarding whether resort property, whose purchase was financed by the bank, was subject to flooding, the Court held (1) a common law action may be maintained against a lender, assignee, or holder where direct allegations of fraud or negligence exist apart from the provisions of the Consumer Credit and Protection Act; (2) under a common law action for fraud or negligence, the defenses under the Consumer Credit and Protection Act are not available to either party; and (3) the Consumer Credit and Protection Act does not immunize lenders, assignees, or holders from liability for common law actions for fraud or negligence.

Billy J. Jones and Sandra L. Jones v. The Credit Bureau of Huntington, Inc., No. 19479 (W. Va. November 13, 1990) (McHugh, J.): 184 W.Va. 112, 399 S.E.2d 694:

Affirming a verdict of $4,000 in compensatory damages and $42,500 in punitive damages against a credit bureau that had erroneously reported that a $20,000 judgment had been entered against the plaintiffs, the Court held that (1) under the Federal Credit Reporting Act, 15 U.S.C. §§ 1681 to 1681t, the plaintiff need only prove actual damages, which may consist of humiliation, emotional distress, reputational harm, and injury to the plaintiff's credit rating, sustained as the result of a willful or negligent failure to comply with such Act; and, (2) punitive damages recoverable under the Federal Credit Reporting Act need not bear a reasonable relationship to compensatory damages, but may be related to (i) the remedial purpose of the Act, (ii) the harm to the consumer intended to be avoided or corrected by the Act, (iii) the manner in which the consumer reporting agency conducted its business, and (iv) the consumer reporting agency's income and net worth.

CONTEMPT

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

In a case involving the propriety of contempt as a discovery sanction, the Court held (1) contempt is a permissible sanction for failure to obey a discovery order under R. Civ. P. 37(b)(2)(D), except an order to submit to a physical or mental examination; (2) a per diem penalty is a permissible discovery sanction where it is set prospectively from the date of the contempt order as a means of insuring compliance with the discovery order; and (3) in addition to other discovery sanctions, a trial court may require, pursuant to R. Civ. P. 37(b)(2)(D), either the offending party or the party's attorney or both to pay the moving party's reasonable expenses, including attorney fees, unless the violation was substantially justified or such award would be unjust.

CONTRACTS

Fraternal Order of Police, Lodge Number 69, and Thomas L. Hartley v. The City of Fairmont and Edwin Thorne, as City Manager, No. 22905 (W. Va. February 14, 1996) (Cleckley, J.): 196 W. Va. 97, 468 S.E.2d 712:

Reversing a trial court's failure to grant summary judgment for the plaintiffs in a case involving interpretation of the phrase "per year" in a two-year collective bargaining agreement that provided for a "4% per year wage increase," the Court held that the phrase "per year" in a contract is equivalent to the word "annually."

Barn-Chestnut, Inc. v. CFM Development Corporation, No. 22474 (W. Va. April 14, 1995) (Workman, J.): 193 W.Va. 565, 457 S.E.2d 502:

Where lessee/franchisee claimed lessor/franchisor did not act in good faith in negotiating renewal of the lease which was necessary precondition to franchise agreement, the Court held (1) where a franchise agreement is contingent upon the existence of a lease, absent any statutory or contractual provisions to the contrary, a lessor/franchisor is not required to offer a successive lease agreement to the lessee/franchisee upon expiration of the lease and (2) a lessor/franchisor is under no obligation of good faith, fair dealing, or commercial reasonableness to offer a renewal of either the lease or the franchise agreement.

The Wheeling Clinic, a partnership v. Byron L. Van Pelt, No. 22309 (W. Va. December 9, 1994) (McHugh, J.): 192 W.Va. 620, 453 S.E.2d 603:

Reversing a ruling that a liquidated damages clause of a partnership agreement constituted an unenforceable penalty, the Court held that in determining whether a clause in a contract stating a sum to be paid in the event of a breach of contract is liquidated damages or a penalty, the important question is not the intention of parties but rather the reasonableness in fact of the agreed sum when the contract was made.

Deanna Lynn Haymaker, etc., et al. v. General Tire, Inc., an Ohio corporation, and Turnpike Ford, Inc., No. 20100 (W. Va. July 23, 1992) (McHugh, C.J.): 187 W.Va. 532, 420 S.E.2d 292:

Rejecting a claim that parol evidence could not be introduced to explain that a general release of a third party was not intended to release other responsible parties from liability, the Court held that the parol evidence rule may not be invoked by a stranger to a release.

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

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

Joe D. Helmick and Tammy Helmick v. Potomac Edison Company, a Maryland corporation, Carl Belt, Inc., a Maryland Corporation, Hester Industries, a corporation, and Potomac Edison Company, a Maryland Corporation, No. 19772 (W. Va. June 27, 1991) (Neely, J.): 185 W.Va. 269, 406 S.E.2d 700:

Where a utility sought enforcement of the indemnity provisions of its standard commercial customer service contract, the Court declined, holding that contracts of adhesion by which monopolies require indemnification for incidents in which the monopoly is at fault are void as against public policy.

Daphne Colleen Pasquale, etc. v. Ohio Power Company, etc., et al., Gallia Refrigeration, Inc., aka Pasquale Electric Company, etc. v. The Travellers Insurance Company, etc., et al., No. 19940 (W. Va. December 19, 1991) (Miller, C.J.): 186 W.Va. 501, 413 S.E.2d 156:

Where worker was killed engaging in activities outside the terms of the written contract, the Court determined that an award of summary judgment was inappropriate, holding that although written consent is ordinarily required where a construction contract provides that its terms cannot be changed without such written consent, this provision may be waived by the parties through conduct or circumstances that justify avoiding the requirement.

Desco Corporation, dba Colliers Industries v. Harry W. Trushel Construction Company and Fire Foe Corporation v. Industrial Risk Insurers, No. 19993 (W. Va. December 6, 1991) (Miller, C.J.): 186 W.Va. 430, 413 S.E.2d 85:

Rejecting an attempt by an insured to recover damages from sprinkler system installer for loss of inventory in a fire, the Court held that (1) two categories of damages are available in a breach of contract action: direct damages for which there is no requirement that the parties actually anticipated them and consequential damages for which the plaintiff must show that at the time of the contract the parties could reasonably have anticipated would be a probable result of a breach; (2) although whether contract damages are direct or consequential is a question of law, whether special circumstances exist to show that consequential damages are within the reasonable contemplation of the contracting parties is a question of fact; and, (3) the doctrine of assumed or incurred risk is based upon the existence of a factual situation in which the defendant alone creates the danger and causes the injury and the plaintiff voluntarily exposes himself to the danger with full knowledge and appreciation of its existence.

Art's Flower Shop, Inc. v. The Chesapeake and Potomac Telephone Company of West Virginia, Inc., and the Reuben H. Donnelly Corporation, No. 20085 (W. Va. December 5, 1991) (Brotherton, J.): 186 W.Va. 613, 413 S.E.2d 670:

After allegedly suffering a decline in business when an advertisement was inexplicably omitted from the yellow pages of the local telephone directory, the Court invalidated a contractual provision limiting damages to the cost of the advertisement, holding that the factors to be considered in determining unconscionability are (1) the relative bargaining positions of the parties; (2) the meaningful alternatives to the party asserting unconscionability; and (3) the existence of unfair terms.

Carl W. Smithson, Sr., dba Smithson Brothers Well Service Co. v. United States Fidelity & Guaranty Company and Basil Thumm, No. 20073 (W. Va. November 22, 1991) (Miller, C.J.): 186 W.Va. 195, 411 S.E.2d 850:

With respect to the mitigation of damages where the insurance company's inaction allegedly delayed final resolution of a fire loss claim on a piece of commercial equipment, the Court held that, in a contract action, where a defendant has refused to perform and had the same opportunity to mitigate damages as the plaintiff by taking some action, the defendant is foreclosed from asserting that the plaintiff failed to mitigate damages.

Jeffrey W. Stemple and Judith E. Stemple v. Lewis M. Dobson, Carol Y. Dobson, and Ace Exterminators, Inc., a West Virginia corporation, No. 19559 (W. Va. December 12, 1990) (Miller, J.): 184 W.Va. 317, 400 S.E.2d 561:

Where former homeowners raised an "as is" clause in their real estate contract as a defense to a claim that they had concealed termite damage, the Court held that an "as is" clause will not relieve a vendor of the obligation to disclose a known condition which substantially affects the value or habitability of the property, and which would not be disclosed to the purchaser by a reasonable and diligent inspection, because a failure to disclose such condition constitutes fraud.

Michael Acord and Kathryn L. Acord v. Chrysler Corporation, a corporation, and Earehart AMC/Jeep, Inc., d/b/a Earehart Dodge, a corporation, No. 19498 (W. Va. November 29, 1990) (Neely, C.J.): 184 W.Va. 149, 399 S.E.2d 860:

After parties were unable to agree on the implementation of an arbitrator's award of a new car, the Court held that where an arbitration award or settlement agreement provides that one party may pursue his or her legal remedies if "dissatisfied" with the other party's performance, the right to reject performance is absolute, as long as the rejection is made in good faith.

Karen J. Thomas, also known as Karen J. LaRosa v. James D. LaRosa, No. 19629 (W. Va. November 9, 1990) (Neely, C.J.): 184 W.Va. 374, 400 S.E.2d 809:

Where mogul's paramour sought to enforce an alleged contract to provide lifetime support in exchange for "services" rendered, the Court held that agreements for future support by non-marital partners are unenforceable, even where the consideration for such agreements is rendition of services of a non-sexual nature, because such agreements either conflict with our proscription against common law marriage or constitute a condonation of bigamy.

Elkins Manor Associates, a limited partnership, and Elkins Manor, Inc., a corporation v. Eleanor Concrete Works, Inc., a corporation v. United States Fidelity and Guaranty Company v. Lawrence D. Butcher, No. 19272 (W. Va. July 25, 1990) (Miller, J.): 183 W.Va. 501, 396 S.E.2d 463:

In a breach of contract action for delivery of delayed and defective building components, the Court held: (1) where time is of the essence, delayed performance beyond the period of time contractually specified, unless occasioned or waived by the other party, constitutes a breach of contract, entitling the aggrieved party to terminate; (2) waiver does not occur merely because an owner permits a contractor to proceed with the work; and, (3) it is the contractor's obligation to correct noncompliance with contract specifications at its own expense, and any delay occasioned by such correction is chargeable to the contractor.

John T. Copley v. NCR Corporation, Maria McCarthy, Donald W. Hodgson and Victor Cononi, G.I. Williamson, George J. Carpini, C.J. Steinmetz, Paul W. Lappetito, Manuel Garcia, Elton White, W.F. Buster, D.J. Herman and C.E. Exley, Jr., No. 19204 (W. Va. June 12, 1990) (Miller, J.): 183 W.Va. 152, 394 S.E.2d 751:

In reversing an order enforcing a mandatory arbitration provision of an employment contract, the Court held that under Section 1 of the United States Arbitration Act, 9 U.S.C. § 1, et seq., which provides for mandatory enforcement of arbitration clauses involving maritime or interstate commerce, an exemption is provided for employment of workers engaged in interstate or foreign commerce.

Earl F. Shrewsbery v. National Grange Mutual Insurance Company, No. 19191 (W. Va. June 7, 1990) (Neely, C.J.): 183 W.Va. 322, 395 S.E.2d 745:

Where an agent whose contract was terminated by his principal on the basis of the loss record of his policies brought an action for tortious interference after the company notified its policyholders that they could renew their policies without an agent or contact the agent about insurance with another company, the Court held it is impossible for one party to a contract to maintain an action for tortious interference against another party to the contract. On another issue, the Court held that an agent is not a party to an insurance contract, but only an incidental beneficiary whose right to commissions is solely a matter of contract between such agent and the insurance company.

Jerri T. Warner v. Glenn Dice Warner, No. 19039 (W. Va. May 18, 1990) (Workman, J.): 183 W.Va. 90, 394 S.E.2d 74:

In an appeal from a trial court's refusal to invalidate a property settlement agreement allegedly procured by threat of prosecution for forgery, the Court held that when a threat to institute criminal proceedings, irrespective of guilt or innocence, destroyed a party's ability to exercise free will, an otherwise valid agreement may be set aside for duress.

Dr. Sriramloo Kesari, etc. v. John Simon, d/b/a Hilltop Industries, and United States Fidelity & Guaranty Company, etc. v. J.L. Bowling Roofing & Sheet Metal Company, Inc., No. 19011 (W. Va. April 12, 1990) (Brotherton, J.): 182 W.Va. 795, 392 S.E.2d 511:

Where a subcontractor sought to avoid liability to the general contractor who settled with the plaintiff, the Court held that a contractor who enters into a settlement with a party asserting a breach of contract claim may maintain a cause of action against a subcontractor responsible for the defective work who had notice of the potential claim against such subcontractor.

Roy E. Hicks v. Amos C. Wilson, No. 19137 (W. Va. January 25, 1990) (Neely, C.J.): 182 W.Va. 660, 391 S.E.2d 350:

Although a fee agreement between a claimant and his counsel, which did not impose a cap on attorney fees of 25% of "any and all awards of benefits," predated a statute imposing a cap of 25% of 208 weeks of benefits, the Court held that such statute did not constitute an unlawful impairment of contracts because the parties were on notice that the field in which they were contracting, i.e., workers' compensation, was subject to close regulation.

CORPORATIONS

Joseph M. Persinger, on behalf of himself and other shareholders of Persingers, Incorporated, etc., et al. v. R. Frank Carmazzi, et al., No. 21804 (W. Va. February 17, 1994) (Neely, J.): 190 W.Va. 683, 441 S.E.2d 646:

Effectively rejecting an attempt by minority shareholders to upset a corporate takeover, the Court held (1) under W. Va. Code § 31-1-19, shareholders are only entitled to receive notice of the time and place of the annual meeting and are not entitled to receive notice of a proposed bylaw amendment unless such amendment involves the articles of incorporation, a merger, a sale of assets, or dissolution; (2) a shareholder may vote on a measure even though the shareholder has a personal interest in the measure apart from his or her interest as a shareholder; (3) unless illegal, ultra vires, fraudulent, or majority stockholders use their voting power for selfish purposes adverse to the interests of the corporation, a corporation stock redemption does not constitute breach of a fiduciary duty; and (4) when majority stockholders seek a corporation's merger, they may do so for any purpose, so long as the terms tendered to the minority shareholders accurately reflect the fair market value of the minority interest.

John Mills v. USA Mobile Communications, Inc., a domestic corporation, and Jack W. Fuellhart, individually, No. 21761 (W. Va. October 29, 1993) (Miller, J.): 190 W.Va. 209, 438 S.E.2d 1:

Affirming summary judgment for shareholders in a corporation charged with malicious prosecution, the Court held (1) shareholders are under no obligation to the corporation or its creditors other than to pay for the shares held, and (2) the corporate entity may be disregarded where the corporate form is being used to perpetrate injustice, defeat public convenience, or justify wrongful or inequitable conduct.

State of West Virginia ex rel. Herbert Elish, et al. v. Honorable Ronald E. Wilson, Judge of the Circuit Court of Hancock County; Larry G. Godich, et al., No. 21752 (W. Va. July 22, 1993) (Brotherton, J.): 189 W.Va. 739, 434 S.E.2d 411:

Apparently interpreting both Delaware and West Virginia law, the Court affirmed the right of employee stock ownership plan [ESOP] participants to bring a shareholder derivative suit against a Delaware corporation, holding that (1) the law of the state of incorporation determines who can institute who can bring a shareholders derivative suit, and (2) employee stock ownership plan participants are shareholders within the meaning of Section 303 of the Restatement(2d) of Conflicts.

Eddie Bowling, et al. v. Ansted Chrysler-Plymouth-Dodge, Inc., and David Akers, No. 20994 (W. Va. December 11, 1992) (Miller, J.): 188 W.Va. 468, 425 S.E.2d 144:

Overturning a directed verdict in favor of a car dealership's president, whom the plaintiffs charged with fraudulently misrepresenting rental cars as "factory cars," the Court held that an officer of a corporation may be personally liable for the tortious acts of the corporation, including fraud, if the officer participated in, approved of, sanctioned, or ratified such acts.

Charles W. Young v. JCR Petroleum, Inc., a foreign corporation; J.R. Barati; and Jerry L. Willey, Nos. 21010 and 21137 (W. Va. November 12, 1992) (Neely, J.): 188 W.Va. 280, 423 S.E.2d 889:

Rejecting an attempt by a West Virginia minority shareholder to dissolve an Ohio corporation, the Court held that a corporation is a creature of the state by which it is chartered and the courts of one state have no jurisdiction to dissolve a corporation created under the laws of another state.

Joy Technologies, Inc. v. Liberty Mutual Insurance Company, et al., No. 20153 (W. Va. July 21, 1992) (Brotherton, J.) (as modified): 187 W.Va. 742, 421 S.E.2d 493:

Where insurance industry had represented to insurance commissioner that proposed policy language was to be given a particular interpretation, the Court noted that the insurance industry was estopped from affording a different interpretation, holding that corporations which seek to do business in West Virginia must act in a manner consistent with their studied, unambiguous, official, affirmative representations to the state, its subdivisions, or its regulatory bodies.

State of West Virginia v. Kennie Childers, No. 20426 (W. Va. March 5, 1992) (Miller, J.): 187 W.Va. 54, 415 S.E.2d 460:

Reversing the conviction of a coal company president who violated an administrative order to secure a wage bond on the grounds that the indictment named the wrong statute and otherwise failed to specify the elements of the offense charged, the Court held (1) it is not essential to name the corporation in an indictment of a corporate officer as long as the officer is identified and the elements of the crime are alleged, and (2) corporate officers, agents, and directors may be criminally liable if they cause the corporation to violate criminal statutes while conducting corporate business.

In the Matter of: Determination Pursuant to Chapter 31, Article 1, Sections 122 and 123 of the Code of West Virginia, etc., No. 19609 (W. Va. November 13, 1990) (Miller, J.): 184 W.Va. 96, 399 S.E.2d 678:

Where minority shareholders, dissenting from a proposed bank merger, failed to physically tender their shares for notation within the 20 day period set forth in W. Va. Code § 31-1-123(f), the Court held (1) the statutory rights of dissenting shareholders are to be construed favorably to shareholders, especially where there is no prejudice to the corporation; (2) failure to comply with W. Va. Code § 31-1-123(f) may be waived by the corporation or may be excused for good cause; and, (3) where a dissenting shareholder has complied with the other provisions of W. Va. Code § 31-1-123, failure to comply with W. Va. Code § 31-1-123(f) will not terminate the shareholder's rights if the delay is not substantial and the corporation can demonstrate no prejudice.

Hodges Realty Co., Inc., etc. v. John Smiley's Motel, Inc., etc., No. 18901 (W. Va. June 21, 1990) (Brotherton, J.): 183 W.Va. 328, 395 S.E.2d 751:

Affirming a trial court's refusal to compel the issuance of stock certificates to a realty company that asserted as its consideration for an alleged agreement for such issuance, its concession to a reduced commission, its co-signing a promissory note, and its making a secret "under the table" payment, the Court held that a person asserting an ownership interest in shares of a corporation must demonstrate that consideration was given for the claimed interest in the corporation.

CRIMINAL

State of West Virginia v. Robert Lee Greene, No. 23063 (W. Va. July 11, 1996) (Albright, J.):

Rejecting a double jeopardy challenge to a criminal prosecution that followed civil forfeiture of a motor vehicle allegedly used in furtherance of the same criminal activity, the Court held (1) federal and state constitutional double jeopardy provisions are coextensive; (2) to determine whether a penalty is civil or criminal for double jeopardy purposes, a court must decide (i) whether the Legislature intended the penalty to be civil or criminal and (ii) whether the penalty, even if intended to be civil, is so punitive either in its purpose or effect, as to be criminal in nature; and (3) the forfeiture provisions of W. Va. Code §§ 60A-7-703(a)(2) and (4) were intended to be civil in nature and are not so punitive either in purpose or effect as to violate principles of double jeopardy.

State of West Virginia v. James Hughes, No. 22978 (W. Va. July 8, 1996) (Workman, J.):

Affirming the denial of credit for time served while on home confinement as a condition of pretrial bail, the Court held that (1) the Home Confinement Act, W. Va. Code § 62-11B-1, et seq., which permits home confinement as a condition of bail, applies only to post-conviction bail and (2) home confinement as a condition of pretrial bail is neither confinement nor under the Home Confinement Act and, accordingly, time spent on home confinement as a condition of pretrial bail does not count as credit toward any sentence subsequently imposed.

State of West Virginia v. Chester Houston, No. 22950 (W. Va. July 3, 1996) (Recht, J.):

Affirming a defendant's conviction of delivery of marijuana where the sale to an undercover informant was accomplished only after repeated rebuffs by the defendant, the Court held (1) the entrapment defense is subjective in nature, occurring where the design or inspiration for the crime originates with the police who secure its commission by an accused who otherwise would not have perpetrated it except for the instigation or inducement of police; (2) where competent evidence is offered that police induced the defendant to commit the crime, the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant was predisposed to commit the offense; (3) upon review of a trial court's failure to enter a judgment of acquittal based upon an entrapment defense, the evidence will be considered in the light most favorable to the prosecution and reversal will occur only where no rational trier of fact could have found the existence of predisposition beyond a reasonable doubt; (4) the outrageous government conduct defense is objective in nature and does not depend upon negation of a predisposition on the part of the accused; (5) in order to prove the outrageous government conduct defense pursuant to due process provisions of W. Va. Const. art. X, § 3, and U.S. Const. amend. 5, it must be demonstrated that the conduct was so egregious and reprehensible that it violates notions of fundamental fairness and a universal sense of justice; (6) if outrageous governmental conduct rising to the level of a constitutional due process violation is proven, there may be no prosecution of the crime arising from such conduct; (7) whether outrageous governmental conduct is present depends upon (i) whether the conduct went beyond mere inducement to criminal activity, but rose to the level of the creation or manufacture of the criminal activity solely for the purpose of instituting criminal charges, (ii) whether the conduct was not motivated by a desire to prevent future crime or protect the public at large, (iii) whether the governmental conduct itself constituted criminal or improper activity, and (iv) whether the government appealed to humanitarian instincts, such as sympathy or friendship, or to human frailties, such as avarice, in order to overcome the defendant's initial resistance; and (8) factual determinations regarding the defense of outrageous government conduct will be reviewed under a clearly erroneous standard and legal conclusions regarding the same will be analyzed under a de novo standard of review.

Beverly S. Jackson Muscatell v. Jane L. Cline, Commissioner, No. 22945 (W. Va. June 14, 1996) (Albright, J.):

Determining that an alleged traffic violation was merely a pretext for stopping a driver, to whom the arresting officer had been alerted by an anonymous tip, the Court reversed a DUI-related suspension, holding that although an officer may make an investigatory stop of a vehicle if there is an articulable reasonable suspicion that a crime has been, is being, or is about to be committed, when relying upon an anonymous tip, such officer must also, through subsequent police work or other facts, sufficiently corroborate the tip to justify the investigatory stop under the reasonable suspicion standard.

State of West Virginia ex rel. Daniel W. Eads, Jr. v. William C. Duncil, Warden, Huttonsville Correctional Center, and the West Virginia Board of Probation and Parole, No. 23279 (W. Va. June 14, 1996) (Albright, J.):

Overturning the revocation of parole and remanding for another hearing where the record did not reflect the participation of the entire parole board in the revocation proceedings, and striking a parole requirement that the parolee make at least ten employment contacts each day, the Court held that (1) the record in parole revocation cases must affirmatively show that the documents and evidence produced in the revocation proceeding have been submitted to all duly appointed and qualified members of the parole board for consideration prior to the final decision, that the number of members considering such documents and evidence constituted a quorum, and that a majority of the quorum concurred in the order revoking parole, either by signing the order or filing a written concurrence in the revocation, and (2) the parole board must obey legislation and act in a way that is not unreasonable, arbitrary, or capricious.

State of West Virginia v. James Stephen Marple, No. 23163 (W. Va. June 14, 1996) (Cleckley, J.):

Affirming defendant's conviction of first-degree murder with mercy, where an officer's statement on direct examination that the defendant "refused to acknowledge his rights. He wouldn't talk to us," in violation of State v. Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977), was not objected to at trial, the Court held (1) the plain error rule creates a limited exception to the general forfeiture policy of R. Evid. 103(a)(1), in that where a trial court's error seriously affected the fairness, integrity, and public reputation of the judicial process, an appellate court has the discretion to correct such error despite the defendant's failure to object; (2) a "plain" error is one that is clear and uncontroverted at the time of the appeal; and (3) a defendant need not demonstrate that without the allegedly "plain" error, he would have been acquitted, but rather need only demonstrate that the trial was adversely affected.

State of West Virginia v. Angela Dawn Miller, No. 23155 (W. Va. June 14, 1996) (Cleckley, J.):

Affirming defendant's conviction of first-degree murder without mercy where the defendant raised a number of issues, the Court held (1) R. Crim. P. 12(b) requires that a defendant raise any objection to an indictment before trial and without a timely objection the indictment will not be invalidated unless it is so defective that it does not, by any reasonable construction, charge an offense under West Virginia law or for which the defendant was convicted; (2) the sufficiency of an indictment, reviewed de novo, is determined by practical rather than technical considerations; (3) to succeed on an abuse of discretion claim regarding the judicial management of a criminal trial, e.g., permitting the circuit clerk to read the voir dire questions to the prospective jurors, a defendant must identify a specific rule or statutory violation and demonstrate that the measures or procedures used were prejudicial; (4) whether a prospective juror is biased depends upon whether the juror has such a fixed opinion that he or she could not judge impartially the guilt of the defendant; (5) although a prospective juror may state affirmatively upon voir dire that he or she could set aside any predisposition and decide the case on the evidence, such representations should not be credited if other facts in the record indicate to the contrary; (6) a juror's bias may be shown by admission or by proof of specific facts demonstrating such prejudice or connection with the parties that bias is presumed; (7) the moving party bears the burden of demonstrating the bias of a prospective juror; (8) a trial court's discretionary ruling on a motion to strike a prospective juror for cause will be disturbed on appeal only where there is clear and definite evidence that such juror would have been unable to faithfully and impartially perform his or her duties under the instructions of the trial court; (9) when an inference of malice through the use of a deadly weapon instruction is given, the jury should be cautioned that (i) any inference only arises by satisfactory proof that a deadly weapon was used and (ii) where there was legal justification, excuse, or provocation, the inference of malice does not arise and malice must be demonstrated independently of proof of use of a deadly weapon; and (10) if requested by a defendant, a trial court must instruct the jury that the defendant has no obligation to offer evidence on the subject of malice and the jury may not draw any inference from the defendant's silence.

State of West Virginia v. Thomas Berrill, No. 23050 (W. Va. June 14, 1996) (Albright, J.):

Affirming convictions of wearing a mask in public and disrupting a public meeting where the defendant wore a devil's costume to a school board meeting to protest a high school's "Red Devil" mascot, but remanding for resentencing affording the defendant his right of allocution, the Court held (1) because W. Va. Code § 61-5-19, the disruption of a public meeting statute, is content-neutral, it survives first amendment scrutiny as a reasonable time, place, and manner restriction on the rights of speech and petition; (2) W. Va. Code § 61-6-22, the wearing a mask in public statute, does not violate the free speech provisions of the federal and state constitutions; and (3) the right of allocution is subject to plain error analysis.

State of West Virginia v. Todd Andrew H., No. 23186 (W. Va. June 14, 1996) (Cleckley, J.):

Where officer who had taken juvenile to police station because he had failed to appear in response to a traffic citation and because the officer believed there might be a juvenile petition pending against the defendant, and later arrested the juvenile when records revealed the defendant was a "runaway," despite being informed by the juvenile that he was living at home and was no longer a runaway, discovered crack cocaine on the juvenile's person after conducting a search, the Court found both the arrest and search unlawful, holding that (1) a juvenile may be taken into custody without a warrant or court order, under W. Va. Code § 49-5-8(b)(3), if the officer has reasonable grounds to believe the child is a runaway without just cause from the child's parents and the child's health, safety, and welfare are in jeopardy; (2) in order to determine whether a child's health, safety, and welfare are in jeopardy in order to justify a warrantless arrest, there must be objective evidence that the child is (i) behaving in a self-destructive manner, (ii) exposed to imminent physical harm, (ii) under the influence of drugs or alcohol, or (iv) incoherent and confused; and (3) in the absence of special circumstances justifying the warrantless arrest of a juvenile, the officer should either (i) obtain an arrest warrant or other appropriate court order or (ii) deliver the juvenile to his or her parents.

State of West Virginia v. Virgil Luther Ivey, No. 23079 (W. Va. June 14, 1996) (McHugh, C.J.):

Affirming defendant's conviction of negligent shooting while hunting and rejecting an argument that the Court should impose a higher standard than ordinary carelessness or negligence, the Court held that under W. Va. Code § 20-2-57, it is a misdemeanor for any person, while engaged in hunting, pursuing, taking or killing wild animals or wild birds, to act with ordinary carelessness or ordinary negligence in shooting, wounding, or killing any human being or livestock, or in destroying any other chattels or property.

State of West Virginia ex rel. William C. Forbes, Prosecuting Attorney for Kanawha County v. Hon. Herman G. Canady, Jr., Judge of the Circuit Court of Kanawha County, and Matthew R. Hensley, No. 23242 (W. Va. June 13, 1996) (Recht, J.):

Where, following defendant's acquittal in magistrate court of public intoxication and destruction of property, he was indicted for malicious assault arising from the same bar fight that resulted in the misdemeanor charges, the circuit court dismissed under R. Crim. P. 8(a), the mandatory joinder rule, from which the prosecutor sought a writ of prohibition, with the Court remanding for further hearing and ruling that (1) R. Crim. P. 8(a) requires the prosecuting attorney, in a single charging document, to charge all offenses arising from the same act or transaction, or on two or more acts or transactions, connected together or constituting parts of a common scheme or plan, whether felonies, misdemeanors, or both, provided the offenses occurred in the same jurisdiction and the prosecuting attorney knew or should have known of all the offenses or had an opportunity to present all offenses prior to the time that jeopardy attached in any one of the offenses; (2) the burden of joining multiple offenses under R. Crim. P. 8(a) is upon the prosecution and not the defendant; and (3) the appropriate remedy for violation of R. Crim. P. 8(a) is dismissal of the subsequent charges.

State of West Virginia v. Robert C. Johnson, No. 22954 (W. Va. May 21, 1996) (McHugh, C.J.):

Affirming a conviction of first-offense DUI where the defendant was indicted for third-offense DUI, but where the trial judge permitted only the issue of first-offense DUI to go to the jury after it became apparent that the two predicate convictions could not be used for enhancement purposes, the Court rejected an argument that the trial judge should have dismissed the indictment, holding that (1) if the proof at trial differs from the allegations in the indictment, it must be determined whether the difference is a variance or an actual or construction amendment to the indictment; (2) if a criminal defendant is not misled, is not subjected to any additional burden of proof, or is not otherwise prejudiced, then the difference between the proof at trial and the allegations in an indictment is a variance that does not violate the traditional safeguards of the grand jury process; and (3) if a criminal defendant is misled, is subjected to an additional burden of proof, or is otherwise prejudiced, the difference between the proof at trial and the allegations in an indictment is an actual or constructive amendment of the indictment, constituting reversible error.

State of West Virginia v. William Harrison Meade, No. 23109 (W. Va. May 17, 1996) (McHugh, C.J.):

Affirming defendant's conviction of attempted murder where one of the assignments of error concerned a trial court directive that the defendant remove his shirt to display his tattoos to the jury, the Court held that where a criminal defendant's tattoos are relevant to the issue of identity and where the trial court has properly weighed the probative value of such evidence against its potential for unfair prejudice, it is not an abuse of discretion for the trial court to direct the defendant to reveal or display his or her tattoos to a witness and to the jury.

State of West Virginia v. Wayne E. Broughton, No. 22944 (W. Va. April 8, 1996) (Workman, J.): ___ W. Va. ___, 470 S.E.2d 413:

Where defendant was convicted of delivery of marijuana that would have required consideration of the factors discussed in State v. Nicastro, 181 W. Va. 556, 383 S.E.2d 521 (1989), before the denial of probation, but where the defendant was also convicted of conspiracy to deliver marijuana and delivery of cocaine, the Court held that where a first-time offender who otherwise falls within the purview of Nicastro is simultaneously convicted of a more serious offense, the determination of whether the Nicastro factors should be considered is within the sound discretion of the trial judge.

State of West Virginia v. Floyd Lee DeGraw, No. 22977 (W. Va. April 8, 1996) (Workman, J.): ___ W. Va. ___, 470 S.E.2d 215:

Affirming defendant's conviction of first-degree murder without a recommendation of mercy where an otherwise inadmissible statement was admitted to rebut a defense psychiatrist's testimony that the defendant had a "blackout" when the murder was committed, the Court held that although the scope of the impeachment exception to exclusionary rule where a statement was voluntary, but illegally obtained, does not permit the use of such statement to impeach the credibility of defense witnesses, when a defendant offers expert testimony which calls into question the defendant's mental condition at the time of the commission of the crime, and the expert's opinion is based, in part, on the defendant's statements to the expert, the otherwise inadmissible statement may be admitted pursuant to the impeachment exception, either during cross-examination or rebuttal, even if the defendant does not testify.

State of West Virginia v. Jeffrey Scott LaRock, No. 22979 (W. Va. March 20, 1996) (Cleckley, J.): ___ W. Va. ___, 470 S.E.2d 613:

Affirming a conviction of first-degree murder without mercy arising from the killing of a nineteen-month-old child, holding that (1) in determining the sufficiency of evidence to convict, all evidence, both direct and circumstantial, and all inferences that could be made therefrom, as well as any conflicts or credibility issues, must be viewed in a light most favorable to the prosecution; (2) a defendant is protected from undue prejudice in the admission of evidence pursuant to R. Evi. 404(b) if (i) the prosecution offered the evidence for a proper purpose, (ii) the evidence was relevant, (iii) the trial court clearly weighed its probative value against its potential for unfair prejudice, and (iv) the trial court gave a limiting instruction; (3) a trial judge has discretion to bifurcate the guilt and punishment phases of a case in which the jury is required to make a finding of mercy, particularly where the truth-finding function of the trial process would be harmed by a unitary trial, and should consider the following factors in making such discretionary ruling: (i) whether limiting instructions would be effective; (ii) whether evidence is sought to be introduced solely for the mercy and not the guilt determination, (iii) whether evidence sought to be introduced would be admissible for the mercy but not for the guilt determination, or vice-versa, (iv) whether unfair prejudice or disadvantage can be demonstrated by a unified or bifurcated proceeding, (v) whether a unitary trial would prevent the introduction of evidence for purposes of the mercy determination, and (vi) whether bifurcation would unreasonably lengthen the trial; (4) the failure to bifurcate the guilt and punishment phases of a case in which the jury is required to make a finding of mercy will constitute reversible error where "compelling prejudice" to the defendant resulted, amounting to fundamental unfairness; and (5) the plain error rule applies only to avoid a miscarriage of justice, where the fairness, integrity, or public reputation of the proceedings were seriously impaired by the alleged error.

State v. John A. Lacy, No. 23055 (W. Va. February 15, 1996) (Cleckley, J.): 196 W. Va. 104, 468 S.E.2d 719:

Remanding for another suppression hearing where the scope of a search exceeded the property mentioned in the warrants executed prior to such search, but where officers asserted that expansion of search was prompted by the discovery of a weapon and ammunition, the Court held (1) when reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the prosecution, with particular deference to the factual findings of the trial court; (2) although factual findings relating to a suppression motion are subjected to only a clearly erroneous standard of review, the ultimate decision regarding whether the a search or seizure was reasonable is a question of law to be reviewed de novo; (3) a trial court's denial of a motion to suppress will be affirmed unless (i) it is unsupported by substantial evidence, (ii) it is based upon an erroneous interpretation of the law, or (iii) it is clearly wrong; (4) a warrant must particularly describe the things to be seized and the sufficiency of a warrant in this regard depends upon whether an officer reading the description in the warrant would reasonably know what items are to be seized; (5) where detailed specificity is impossible in a warrant, generic language is permissible if it particularizes the types of items to be seized; (6) when a warrant is the authority for a search, the executing officer must act within the confines of the warrant; (7) police may not use an initially lawful search to conduct a broad warrantless search; (8) police may interfere with a citizen's fourth amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and justified for law enforcement purposes; (9) to determine whether an intrusion is minimal, the reviewing judge must examine the interests implicated when police feel a search for weapons is necessary to secure the premises during a search and the privacy interests of the citizen to be free of an unreasonable search and seizure in his or her residence; (10) only when police face a circumstance, such as the need to secure a searched premises, and a reasonable belief that links the sought-after information with the perceived danger, is it constitutional to conduct a limited search of private premises without a search warrant; (11) neither exigent circumstances nor probable cause is required for a protective sweep for weapons as long as, analyzing the situation presented at the scene from the perspective of the officer, (i) there were specific, articulable facts indicating danger and (ii) the officer's suspicion of danger to the officer or others was reasonable; and (12) a "protective search" is (i) a quick and limited search of premises for weapons once an officer has individualized suspicion that a dangerous weapon is present and poses a threat to the safety of the officer or others, (ii) a cursory visual inspection limited to areas where the suspected weapon could be located, and (iii) must terminate once the weapon is located and secured.

State v. Frederick Sears, Jr., No. 23049 (W. Va. February 14, 1996) (Cleckley, J.): 196 W. Va. 71, 468 S.E.2d 324:

Where defendant, who pleaded guilty to wanton endangerment with a firearm under W. Va. Code § 61-7-12, was sentenced to 3-5 years pursuant to W. Va. Code § 62-12-13, which renders those convicted of a felony with the use of a firearm parole ineligible for three years, the Court reversed, holding that (1) once a defendant establishes a prima facie claim that double jeopardy principles have been violated, the burden shifts to the prosecution to show by a preponderance of the evidence that double jeopardy principles do not bar the prosecution or punishment at issue; (2) the purpose of the double jeopardy clause is to ensure that sentencing courts do not exceed, by imposing multiple punishments, the limits prescribed by the legislature, which has the substantive power to define crimes and their punishments; (3) whether imposition of a statutory penalty would violate double jeopardy principles, a court must examine (i) whether the statute serves only a remedial purpose or serves to punish and deter criminal conduct and (ii) whether the penalty is linked to the commission of a specific offense; (4) under Blockburger, if two statutes contain identical elements of proof, the presumption is that double jeopardy principles have been violated unless there is a clear and definite statement by the legislature that cumulative punishment is permissible; and (5) a conviction which is used as the predicate to establish the crime of wanton endangerment with a firearm cannot also be used to enhance a defendant's punishment under W. Va. Code § 62-12-13, the delayed parole eligibility statute, in the absence of explicit legislative authority.

State of West Virginia v. Charles Omechinski, No. 23032 (W. Va. February 14, 1996) (Cleckley, J.): 196 W. Va. 41, 468 S.E.2d 173:

Affirming a conviction where the defendant complained that his witness was permitted to testify as a rebuttal witness for the prosecution after the witness discussed her testimony with another witness and the prosecutor in violation of a sequestration order, the Court held (1) R. Evid. 615, which is designed to discourage fabrication, collusion, and the shaping of testimony to conform or respond to that of other witnesses, makes sequestration a matter of right; (2) R. Evid. 615 applies to rebuttal witnesses and precludes witnesses from discussing their testimony with other witnesses who are subject to recall; (3) witnesses should be clearly directed, when R. Evid. 615 is invoked, that they must leave the courtroom, with the exceptions that the rule permits, and that they are not to discuss with anyone other than counsel the case or what their testimony has been or will be or what occurs in the courtroom, but in the absence of a specific request, a party may not claim error as a result of the failure to instruct as to the impact of a sequestration order; and (4) in determining whether to exclude a rebuttal witness's testimony under R. Evid. 615, a trial court should consider (i) the significance of the testimony, (ii) whether the testimony is subject to tailoring, (iii) whether cross-examination or other evidence could reveal any problems with the testimony, (iv) whether the testimony encompasses the same ground as that of other witnesses, (v) the order of the testimony, and (vi) whether there is any potential for bias that may motivate the rebuttal witness to tailor his or her testimony.

State of West Virginia v. Russell E. Garrett, No. 22832 (W. Va. December 11, 1995) (McHugh, C.J.): 195 W.Va. 630, 466 S.E.2d 481:

Affirming a conviction of first-degree murder without mercy where there was some dispute, because of the deterioration of the remains, about whether the victim's death was by criminal means, the Court held that although corpus delicti may not be established solely by an accused's inculpatory statement, it is sufficient if independent evidence, when considered in conjunction with such statement, establishes a crime beyond a reasonable doubt.

State of West Virginia v. Elizabeth Ladybird Jenkins, No. 22722 (W. Va. December 11, 1995) (McHugh, C.J.): 195 W.Va. 620, 466 S.E.2d 471:

Overturning an uttering conviction where the trial judge precluded the defendant from submitting a handwriting exemplar to the jury, the Court held that (1) preliminary questions of authentication and identification under R. Evid. 901 are conditional and, accordingly, are governed by R. Evid. 104(b); (2) in order to be admissible, the party offering evidence under R. Evid. 901 must make a prima facie showing that "the matter in question is what its proponent claims;" (3) in making a determination of authenticity or identity under R. Evid. 901, it is the role of the trier of fact, and not the trial judge, to determine whether the evidence is credible, with the trial judge's role limited to only determining whether a reasonable juror could find in favor of authenticity or identity; (4) a finding of authenticity or identity does not guarantee admissibility, which must be determined under another rule of evidence; (5) a trial judge's ruling on authenticity or identity will not be disturbed on appeal unless there has been an abuse of discretion; (6) although evidentiary rulings are discretionary, when an evidentiary ruling deprives a criminal defendant of certain procedural due process rights, such as the right of confrontation, the right to present evidence, or the right to counsel, reversible error may be found.

State of West Virginia v. Earnest Sutphin, No. 22833 (W. Va. December 7, 1995) (Recht, J.): 195 W.Va. 551, 466 S.E.2d 402:

Affirming a second-degree murder conviction where a juror visited the home of a witness and discussed the case during the trial and where the victim's father was permitted to testify regarding the defendant's threat to kill the victim if she ever left him, the Court held (1) a judge has a duty to conduct a Remmer hearing where there are allegations of improper communications with jurors during a trial and to thereafter make findings and conclusions as to whether such communications were unduly prejudicial so as to deny the defendant a fair trial; (2) hearsay within hearsay is nevertheless admissible, under R. Evid. 805, if each level of hearsay is governed by one of the exceptions to the hearsay rule; (3) a threat of future action is not hearsay under R. Evid. 801(d)(2) as against a declarant/party; (4) a threat of future conduct is a manifestation of a criminal defendant's state of mind and therefore is admissible as an exception to the hearsay rule contained in R. Evid. 803(3); (5) in order to qualify as an excited utterance under R. Evid. 803(2), the declarant must have (i) experienced a startling event or condition, (ii) reacted while under the stress or excitement of the event and not from reflection and fabrication, and (iii) the statement must relate to the startling event or condition; and (6) in order to determine whether an allegedly "excited utterance" was made under the stress or excitement of the event and not from reflection and fabrication, the trial court must consider (i) the lapse of time between the stimulus and the statement, (ii) the age, physical condition, and mental state of the declarant, (iii) the nature of the stimulus, and (iv) the nature of the statement.

State of West Virginia ex rel. Ronald Gene Daniel v. Carl Legursky, Warden, West Virginia Penitentiary, No. 22917 (W. Va. November 17, 1995) (Cleckley, J.): 195 W.VA. 314, 465 S.E.2d 416:

Affirming the denial of post-conviction habeas corpus relief where primary ground asserted was ineffective assistance of counsel, the Court held (1) the fulcrum for any ineffective assistance of counsel claim is the adequacy of counsel's investigation; (2) unless there is an inadequate investigation of the case, there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and judicial scrutiny of such conduct must be highly deferential; (3) in any post-conviction proceeding, trial counsel's effectiveness should be determined by examining what was known and reasonable at the time of counsel's representation; (4) a claim of ineffective assistance of counsel may be rejected if the petitioner fails to establish either that (i) counsel's performance was deficient under an objective standard of reasonableness or (ii) there is a reasonable probability that, but for counsel's unprofessional conduct, the result of the proceeding would have been different; and (5) to be successful, a claim of ineffective assistance of counsel must relate to a critical stage in the adversary proceedings.

State of West Virginia ex rel. Robert E. Morgan v. George Trent, Warden, Mt. Olive Correctional Center, No. 22886 and Larry F. Dean v. William C. Duncil, Warden, Huttonsville Correctional Center, No. 22847 (W. Va. November 17, 1995) (Miller, J.): 195 W.Va. 257, 465 S.E.2d 257:

Rejecting post-conviction habeas corpus challenges to first-degree sexual assault convictions where the victims had not reached their twelfth birthdays and the relevant statute required them to be "eleven years old or less," the Court held that, under a common sense approach to construction of the phrase, W. Va. Code § 61-8B-3(a)(2), applies to a person who is eleven years old, but has not reached his or her twelfth birthday.

State of West Virginia v. Mabel Lewis, aka Mabel Beasley, No. 22789 (W. Va. November 16, 1995) (Recht, J.): 195 W.Va. 282, 465 S.E.2d 384:

Affirming a sentencing order that conditioned probation on eight months of home confinement and four months of incarceration, where the statutory minimum sentence was one year, Court held that under W. Va. Code § 62-12-9(b), home incarceration is not considered the same as jail incarceration and, accordingly, time spent in home incarceration does not count toward the one-third time of the minimum statutory sentence, which can be ordered as a condition of probation.

State of West Virginia v. Sean M. Harris, No. 22815 (W. Va. October 27, 1995) (Cleckley, J.): 195 W.Va. 43, 464 S.E.2d 363:

Affirming the transfer of a youthful offender to the penitentiary without a hearing for purposes of reconsidering the offender's sentence, the Court held that except in specific, well-defined circumstances, a pretransfer hearing pursuant to W. Va. Code § 49-5-16(b) is unnecessary when (1) all the significant information is in the breast of the court; (2) there is no significant dispute regarding the accuracy and relevancy of the information; and (3) there was a knowing and intelligent waiver of W. Va. Code § 49-5-16(b) at the time the underlying plea agreement was accepted by the court.

State of West Virginia ex rel. Ira Michael Brewer, II v. Honorable Larry V. Starcher, Judge of the Circuit Court of Monongalia County, and Susan Tucker, Prosecuting Attorney for Monongalia County, No. 22966 (W. Va. October 27, 1995) (Cleckley, J.): 195 W.Va. 185, 465 S.E.2d 185:

Granting a writ of prohibition against post-sentencing modification of sentence, the Court held (1) factual findings related to an alleged breach of a plea agreement are only subject to appellate review for clear error; (2) conclusions of law regarding whether specific conduct constituted a breach of a plea agreement are subject to de novo appellate review; (3) there is no constitutional right of plea bargaining; (4) the terms and conditions of a plea agreement must comport with R. Crim. P. 11; (5) the decision to accept or reject a plea agreement is within the almost absolute discretion of the trial court; (6) once a plea agreement under R. Crim. P. 11(e)(1)(C) is accepted unconditionally on the record, a circuit court is without authority to vacate the plea and order reinstatement of the underlying charge[s]; (7) after sentence is imposed in open court, unilateral modification of sentencing is not an option contemplated by R. Crim. P. 11(e)(1)(C); (8) a circuit court has no authority to unilaterally vacate or modify a validly-accepted guilty plea under R. Crim. P. 11(e)(1)(C) because of subsequent events that do not impugn the validity of the original plea agreement; (9) fraud or misrepresentation on the sentencing court will permit vacation of a plea; (10) when a defendant complains that the circuit court failed to comply with R. Crim. P. 11, reversal or vacatur depends upon (i) whether the circuit court varied from the procedures provided in R. Crim. P. 11 and (ii) whether substantial rights of the defendant were affected; and (11) there are two possible remedies for a broken plea agreement, specific performance or withdrawal.

State of West Virginia v. Dale Edward Guthrie, No. 22710 (W. Va. July 19, 1995) (Cleckley, J.): 194 W.Va. 657, 461 S.E.2d 163:

Reversing a first-degree murder conviction where, among other things, the defendant suddenly stabbed the victim with little provocation and, on appeal, argued that such evidence did not support a conviction of premeditated killing, an argument rejected by the Court, where the prosecution elicited testimony regarding the defendant's racial, religious, political, and social views, and where it cross-examined the defendant on an alleged statement that had not been disclosed and for which the prosecution had no independent basis, errors which the Court found reversible, the Court held (1) if any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt, with all factual disputes viewed in a light most favorable to the prosecution, including all inferences and credibility issues, a verdict of guilt will not be set aside on appeal due to insufficiency of the evidence; (2) even where the prosecution relies solely upon circumstantial evidence, no instruction other than proof beyond a reasonable doubt with respect to the State's burden, overruling the "reasonable hypothesis" line of prior decisions; (3) jury instructions are not to be analyzed in isolation on appeal, but must be considered in their entirety, with discretion vested in the trial court regarding matters of language and form; (4) although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of an intent to kill and the actual period, indicating that the killing is by prior calculation and design with some opportunity for reflection on the intention to kill after it is formed; (5) murder in the first degree, i.e., an intentional, deliberate, and premeditated killing, must have been committed after a period of time, which cannot be arbitrarily fixed, for prior consideration, a period of time which depends upon the unique characteristics of the accused and the circumstances present, but an interval between forming an intent to kill and execution of that intent which is of sufficient duration for the accused to be fully conscious of what he or she intended, overruling State v. Schrader, 172 W. Va. 1, 302 S.E.2d 70 (1982); (6) it is improper for a party, except where a recommendation of mercy is relevant, to mention possible sentences, including probation or for lesser-included offenses, overruling State v. Myers, 159 W. Va 353, 222 S.E.2d 300 (1976); (7) improperly injecting issues of race, gender, or religion in a criminal proceeding, unless the probative value of the evidence substantially outweighs its danger of unfair prejudice, is ordinarily reversible error; (8) the "curative admissibility" rule, which permits the introduction of otherwise inadmissible evidence in response to the introduction by an opponent of similarly inadmissible evidence, is allowed where (i) the original evidence was inadmissible and prejudicial, (ii) the rebuttal evidence must be similarly inadmissible, and (iii) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence; and (9) only where there is a high probability that an error of due process proportion did not contributed to a criminal conviction may an appellate court affirm.

State of West Virginia v. Kanju Osakalumi, No. 22614 (W. Va. July 19, 1995) (McHugh, C.J.): 194 W.Va. 758, 461 S.E.2d 504:

Reversing a first-degree murder conviction where the sofa upon which the killing allegedly took place, an analysis of which was central to the prosecution's case, was discarded prior to affording the defense an opportunity to conduct independent testing, the Court held that where evidence the prosecution had or should have had in its possession is requested by the defense, but no longer exists, a trial court must determine (1) whether the requested evidence would have been subject to disclosure under R. Crim. P. 16 or Brady; (2) whether the prosecution had a duty to preserve the evidence; (3) whether the duty was breached; and (4) what consequences should flow from the breach, considering (i) the degree of negligence or bad faith, (ii) the importance of the missing evidence with respect to its probative value and reliability of secondary or substitute evidence that remains available, and (iii) the sufficiency of other evidence at trial to sustain the conviction.

State of West Virginia ex rel. Omarri Hill v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County; and Larry F. Parsons, Administrator, South Central Regional Jail, No. 22881 (W. Va. July 19, 1995) (Fox, J.): 194 W.Va. 688, 461 S.E.2d 194:

Directing the immediate release of a prisoner who had successfully completed his period of incarceration under the youthful offender statute, but whom the trial court refused to release on the grounds that the prisoner had not been entitled to youthful offender treatment and that the statute unconstitutionally restricted the sentencing options of the circuit court, the Court held (1) W. Va. Code § 25-4-6 provides that a juvenile offender who successfully completes his training program "shall be returned to the jurisdiction of the court which originally committed him. He shall be eligible for probation for the offense with which he is charged, and the judge of the court shall immediately place him on probation;" (2) a sentence which is technically infirm, but generally and substantially complies with the spirit and purpose of the law, is not void, but merely voidable, and if the prosecution fails to protest such sentence by timely objection, such failure may constitute waiver of the right to challenge the legality of the sentence; and (3) the discretionary authority conferred on the commissioner of corrections under W. Va. Code §§ 25-4-6 and 49-5-16(b) does not unconstitutionally intrude upon the sentencing authority of courts.

State of West Virginia v. Jacob W. Beard, No. 22504 (W. Va. July 19, 1995) (Workman, J.): 194 W.Va. 740, 461 S.E.2d 486:

Remanding for a Kastigar hearing where the defendant had disclosed certain information pursuant to a grant of immunity, but rejecting an argument that limited admission of polygraph results should be admitted where they exonerate a criminal defendant, the Court held that (1) where a previously immunized witness is prosecuted, a hearing must be conducted for the purpose of requiring the prosecution to demonstrate by a preponderance that all of the evidence it proposes to use at trial was derived from sources wholly independent of the immunized testimony and (2) reaffirming Syl. pt. 2 of State v. Frazier, 162 W. Va. 602, 252 S.E.2d 39 (1979), polygraph results are not admissible in evidence in a criminal trial in West Virginia.

State of West Virginia v. Linda Hardesty, No. 22593 (W. Va. July 18, 1995) (Fox, J.): 194 W.Va. 732, 461 S.E.2d 478:

Reversing, as violative of double jeopardy principles, convictions of both delivery and possession with intent to deliver arising from simultaneous acts, but rejecting a challenge to transcript of an audiotape of a drug buy where such transcripts were not disclosed until four days prior to trial, the Court held (1) concurrent sentencing does not cure violations of constitutional double jeopardy provisions prohibiting multiple punishments for the same offense; (2) transcripts provided to a jury as an aid while videotapes or audiotapes are being seen or heard should not be admitted into evidence and should not be furnished to the jury for purposes of its deliberations; (3) transcripts of videotapes or audiotapes should be marked and identified as demonstrative aids and the jury should be instructed as to their limited purpose.

State of West Virginia v. Bruce Allen Lilly, No. 22541 and State of West Virginia v. Cecil Wayne Lilly, No. 22542 (W. Va. July 17, 1995) (Fox, J.): 194 W.Va. 595, 461 S.E.2d 101:

Reversing a trial court's decision on a suppression issue involving an affidavit which stated, in relevant part, that "[a] reliable confidential informant informed Cpl. H. Whisman, that the accused was growing marijuana plants in above residence," the Court held (1) false information will not invalidate a warrant affidavit unless the defendant can establish such information was either knowingly or recklessly included, and the affidavit, absent the false information, would not support a finding of probable cause; (2) probable cause for issuance of a search warrant exists if the totality of facts and circumstances provided to a magistrate in a written affidavit are sufficient to warrant the belief of a prudent person of reasonable caution that a crime has been committed and that the specific fruits, instrumentalities, or contraband from that crime presently may be found at a specific location, i.e., that there is a nexus between criminal activity and the place or person to be searched or the items to be seized; and (3) where information provided by an informant is used in support of a request for a search warrant, the informant's reliability must be established by (i) a track record of providing accurate information or (ii) independent verification of the information by the observations of police officers.

State of West Virginia v. Forrest Wood, No. 22575 (W. Va. July 14, 1995) (McHugh, C.J.): 194 W.Va. 525, 460 S.E.2d 771:

Affirming a conviction of sexual assault and incest where prosecution witnesses were permitted to testify, prior to any defense challenge, that they believed the alleged victim was being truthful, but where no objection was made by defense counsel, thereby triggering application of plain error analysis, the Court held that (1) R. Evid. 608(a) permits testimony regarding a witness's character for truthfulness where (i) the testimony is limited to the witness's truthful character in general, not regarding a specific incident, (ii) the witness's truthful character has been attacked, (iii) the evidence is relevant pursuant to R. Evid. 402, (iv) the probative value of the evidence, pursuant to R. Evid. 403, outweighs the danger of unfair prejudice, confusion, or misleading the jury, and iv) the evidence does not constitute harassment or undue embarrassment pursuant to R. Evid. 611, and (2) the admission of truthful character evidence pursuant to R. Evid. 608(a) is a matter within the sound discretion of the trial court.

State of West Virginia ex rel. Jamal Adeen Azeez v. Michael Mangum, Sheriff of Raleigh County, No. 22221 (W. Va. July 13, 1995) (Workman, J.): 195 W.Va. 163, 465 S.E.2d 163:

Refusing to retroactively extend the constitutional right of the nondiscriminatory exercise of peremptory challenges by the prosecution to racial minorities different than that of the prospective juror, the Court held that the decision of the United States Supreme Court in Powers v. Ohio, 499 U.S. 400 (1991), which prohibits the racially discriminatory use of peremptory challenges by the prosecution even where the defendant is not a member of the same racial group as the prospective juror, established a new rule of law, not presaged by its previous decision in Batson v. Kentucky, 476 U.S. 79 (1986), and therefore not entitled to retroactive application.

State of West Virginia v. Henry Donovan Buzzard, No. 22531 (W. Va. July 11, 1995) (Workman, J.): 194 W.Va. 544, 461 S.E.2d 50:

Reversing a B&E and grand larceny conviction where officers entered hotel room without a warrant, exigent circumstances, or express consent, the Court held that whether a consent to search is consensual depends upon the totality of circumstances, including (1) the defendant's custodial status; (2) the use of duress or coercion by the officers; (3) the defendant's knowledge of his right to refuse to consent; (4) the defendant's education and intelligence; (5) the defendant's belief that no incriminating evidence will be found; and (6) the defendant's level of cooperation.

State of West Virginia v. Ronald Lee Wyne, No. 22346 (W. Va. July 11, 1995) (Miller, J.): 194 W.Va. 315, 460 S.E.2d 450:

Affirming a life recidivist conviction where the defendant complained that the trial court took judicial notice of the triggering offense, the Court affirmed, holding that (1) a life recidivist penalty may be imposed under W. Va. Code § 61-11-18 if the defendant has been convicted of two prior felonies in addition to the third felony which triggers the life recidivist proceeding and (2) a recidivist proceeding does not require proof of the triggering offense because such triggering offense must be proven prior to the invocation of the recidivist proceeding.

State of West Virginia v. Craig G. Phillips, No. 22633 (W. Va. July 11, 1995) (Cleckley, J.): 194 W.Va. 569, 461 S.E2d 75:

Reversing a second-degree murder conviction where statements of victim were admitted regarding her intention to divorce the defendant due to his infidelities, the Court held (1) R. Evid. 803(1) permits admission of a hearsay statement under the present sense impression exception if (i) the statement was made at the time or shortly after the event, (ii) the statement describes the event, and (iii) the event giving rise to the statement was within the declarant's personal knowledge; (2) a separate showing of trustworthiness, e.g., corroborating evidence, may be considered, but is not required, in determining whether to admit a hearsay statement under the present sense impression exception; (3) R. Evid. 803(3) permits admission of a hearsay statement under the state-of-mind exception, but the statement meet the relevancy requirements of R. Evid. 401 and 402; (4) if the declarant's state-of-mind is irrelevant to resolution of the case, the declarant's hearsay statement is inadmissible; and (5) although forcing the defendant to use one of his or her peremptory challenges to remove a prospective juror who should have been removed for cause does not violate the defendant's constitutional right to trial by an impartial juror in the absence of a showing of prejudice, such use of a peremptory challenge violates W. Va. Code § 62-3-3 and constitutes reversible error.

State of West Virginia ex rel. Clayton Collins v. Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County, No. 22781 and State of West Virginia ex rel. John Leslie Peeples v. Honorable David W. Knight, Judge of the Circuit Court of Mercer County, No. 22783 (W. Va. June 19, 1995) (McHugh, C.J.): 194 W.Va. 390, 460 S.E.2d 636:

Upholding the constitutionality of a new statutory scheme providing for a more limited right of appeal from a misdemeanor conviction in magistrate court, the Court held that (1) W. Va. Code § 50-5-13, which does not provide a de novo appeal of a misdemeanor magistrate court conviction, does not violate W. Va. Const. art. III, § 14 or art. VIII, § 10; (2) because W. Va. Code § 50-5-13 provides meaningful appellate review by the circuit court, a criminal defendant's due process rights under W. Va. Const. art. III, § 10 and U.S. Const. amend. xiv, § 1, are not violated when a nonlawyer presides over the jury trial afforded; and (3) changes to criminal procedure do not violate the ex post facto principles of W. VA. Const. art. III, § 4 and U.S. Const. art. I, § 1, unless they (i) alter the definition of a crime so that what is currentl punished as a crime was an innocent act when committed, (ii) deprive the accused of a defense which existed at the time the crime was committed, or (iii) increases the punishment for the crime after it was committed.

Lawrence A. Carte v. Jane L. Cline, Commissioner of the West Virginia Division of Motor Vehicles, No. 22530 (W. Va. June 16, 1995) (Fox, J.): 194 W.Va. 233, 460 S.E.2d 48:

Rejecting a challenge as an unreasonable seizure, the Court held (1) sobriety checkpoints are constitutional when conducted in accordance with predetermined guidelines which minimize the intrusion on the individual and the discretion of law enforcement and (2) a person desiring to challenge compliance with checkpoint guidelines must give written notice to the DMV prior to the revocation hearing.

State of West Virginia v. James A. Roy, No. 22695 (W. Va. June 15, 1995) (Cleckley, J.): 194 W.Va. 276, 460 S.E.2d 277:

Affirming a third-degree sexual assault conviction despite the prosecution's failure to produce the victim's entire psychiatric records and testimony by the defendant's cousin regarding the defendant's reputation for truthfulness, the Court held (1) although a witness's psychiatric records are ordinarily protected by statute from disclosure, where a criminal defendant can demonstrate relevancy and a legitimate need, the trial court should conduct an in camera inspection of the records to determine whether their disclosure, despite statutory protections, is warranted; (2) the credibility of a witness, including a party, may be attacked or supported under R. Evid. 608(a) by opinion or reputation evidence regarding truthfulness or untruthfulness; and (3) a criminal defendant, by choosing to testify, becomes subject to attack, as any other witness, by opinion or reputation evidence regarding his or her truthfulness or untruthfulness.

State of West Virginia v. Kenneth Jay Mason, No. 22581 (W. Va. June 15, 1995) (Cleckley, J.): 194 W.Va. 221, 460 S.E.2d 36:

Vacating and remanding for an admissibility hearing in a first-degree murder case where two police statements were admitted at trial after the declarants were unavailable to testify, the Court held (1) when a statement falls within a firmly-rooted exception to the hearsay rule, no independent inquiry for reliability is required under the federal and state confrontation clauses; (2) when ruling on the admissibility of a narrative under R. Evid. 804(b)(3), a trial court must (i) carefully examine each statement contained within the narrative, (ii) determine whether each statement was against the penal interest of the declarant, (iii) ascertain whether corroborating circumstances exist indicating the trustworthiness of the statement, and (iv) decide whether the declarant is unavailable; (3) admission of a statement under R. Evid. 804(b)(3), absent an affirmative showing by the prosecution of particularized guarantees of trustworthiness such that confrontation would contribute little to ascertaining its reliability, violates the federal and state confrontation clauses; and (4) admissibility of a hearsay statement not within an established exception may nevertheless be proper, despite the federal and state confrontation clauses, if the totality of circumstances surrounding the statement render it so worthy of belief as to make cross-examination superfluous.

State of West Virginia ex rel. John Doe, Jane Doe, and Jane Roe v. Honorable Joseph G. Troisi, Special Judge of the Circuit Court of Kanawha County, and Michele Rusen, Special Prosecuting Attorney for Kanawha County, No. 22817 (W. Va. May 18, 1995) (Cleckley, J.): 194 W.Va. 139, 459 S.E.2d 139:

State of West Virginia v. Susan Miller, No. 22571 (W. Va. May 18, 1995) (Cleckley, J.): 194 W.Va. 3, 459 S.E.2d 114:

State of West Virginia v. Shawn Satterfield, No. 22374 (W. Va. March 27, 1995) (McHugh, J.): 193 W.Va. 503, 457 S.E.2d 440:

Affirming a first-degree murder conviction where a witness's suicide note was admitted after the witness committed suicide shortly following his testimony, the Court held that (1) in order for a statement in a suicide note to be admissible as a dying declaration (i) the statement must have been made when the declarant was under the belief that his death was imminent and (ii) the dying declaration must concern the cause or circumstances of what the declarant believes to be his or her impending death and (2) once a trial judge has determined that a statements within the dying declaration exception to the hearsay rule, it must be determined whether (i) the evidence is relevant and (ii) its probative value outweighs its potential for unfair prejudice.

State of West Virginia v. Kimberly Don Bradshaw, No. 22302 (W. Va. March 27, 1995) (Cleckley, J.): 193 W.Va. 519, 457 S.E.2d 456:

Affirming convictions of first and second-degree murder where the defendant complained, inter alia, that inculpatory statements should have been excluded after he expressed some reservations about continuing to talk without consulting with an attorney, that evidence should have been excluded where it was discovered pursuant to her conversations with law enforcement, and that his wife should not have been permitted to testify as a witness for the prosecution, the Court held (1) the prosecution bears the burden of proving, by a preponderance of the evidence, that an extrajudicial inculpatory statement is voluntary; (2) whether an extrajudicial inculpatory statement is voluntary or the result of coercion is a legal question to be determined from the totality of the circumstances; (3) prior decisions holding that a defendant has the right to invoke Miranda rights outside a custodial setting are overruled; (4) Miranda warnings, even if given earlier, must be repeated when an interrogation becomes custodial and, absent an effective waiver, further interrogation must cease; (5) there are two marital privileges, one involving testimony and the other involving confidences; (6) the spousal testimony privilege bars all adverse testimony, but it applies only to criminal proceedings, except those against the person or property of the other spouse or certain other relatives, and can be asserted only during the marriage; (7) the marital confidence privilege applies only to confidential communications, but does not include communications made in the presence of known third parties or intended to be disclosed to others outside the privilege, and can be asserted even after the dissolution of the marriage; (8) where alleged error in a criminal appeal is of a nonconstitutional nature, the appropriate test for determine whether such error was harmless is whether, after excluding the erroneous evidence from the whole, the remaining evidence independently was sufficient to support the verdict and that the judgment was not substantially swayed by the error; (9) demonstrative evidence, which is a matter for the sound discretion of the trial court, in the form of witness reenactment is admissible if it affords reasonable inference on a point in issue; and (10) jury instructions are reviewed as a whole to determine whether the jury understood the issues and were not misled on the law and trial courts have substantial discretion in determining the specific wording of instructions.

State of West Virginia v. Eleanor Chambers, No. 22336 (W. Va. March 24, 1995) (Neely, C.J.): 194 W.Va. 1, 459 S.E.2d 112:

Reversing a first-degree arson conviction where the trial court admitted evidence that the defendant declined to submit to a polygraph examination, the Court held that reference to an offer or refusal by a defendant to take a polygraph test is inadmissible in criminal trials.

State of West Virginia v. Samuel Martin Moore, No. 22347 (W. Va. March 24, 1995) (Neely, C.J.): 193 W.Va. 642, 457 S.E.2d 801:

Affirming a conviction of first-degree sexual abuse and burglary where, in violation of statute, the defendant was examined for competence by only a psychologist, and not a psychiatrist, and where the defendant complained that inculpatory statements were the product of his intoxication and mental retardation, the Court held that (1) when a motion for mental status evaluation is filed to determine sanity or competency, an examination should be conducted by "one or more psychiatrists, or a psychologist and a psychiatrist" in accordance with W. Va. Code § 27-6A-1, but failure to do so may be deemed, when the circumstances warrant, to be harmless error and (2) in determining the voluntariness of a confession, the trial court must assess the totality of all the surrounding circumstances, and no one factor, including mental retardation or intoxication at the time of the interrogation, is alone sufficient to invalidate a confession.

State of West Virginia v. Marvin D. Sugg, No. 22486 (W. Va. March 10, 1995) (Cleckley, J.): 193 W.Va. 388, 456 S.E.2d 469:

Affirming a juvenile's adult conviction of aggravated robbery and 45-year sentence, the Court held that (1) the validity of a juvenile's waiver of rights should be evaluation in light of the totality of the circumstances and the presence or absence of the juvenile's parents at the time of the waiver is not dispositive; (2) where neither counsel nor a juvenile's parents are present during interrogation, the greatest care must be exercised to ensure that any inculpatory statement is voluntary and not the product of an ignorance of the juvenile's rights or adolescent fantasy, fright, or despair; (3) a juvenile's waiver of Miranda rights may be valid and a subsequent confession admissible even if made in the absence of counsel or parents; (4) if a delay in parental notification is initiated or suggested by a juvenile suspect and the police do nothing during the delay to take advantage of the juvenile's immaturity and inexperience, an inculpatory statement, voluntarily made, is not rendered inadmissible due to such delay; (5) improper prosecutorial remarks to the jury which do not clearly prejudice the accused or result in manifest injustice do not require reversal of a conviction; (6) the four factors in determining the prejudicial effect of improper prosecutorial remarks to a jury are (i) the degree to which the remarks may have mislead the jury to the defendant's prejudice, (ii) whether the remarks were isolated or extensive, (iii) the strength of the evidence of guilt of the accused, and (iv) whether it appears the remarks were made to divert juror attention to extraneous matters; and (7) R. Crim. P. 11 does not permit a judge's out-of-court discussion of the possible terms of a plea, but allows exploration of the terms of a plea agreement only in open court.

State of West Virginia v. Doug Jones, No. 22377 (W. Va. March 6, 1995) (Cleckley, J.): 193 W.Va. 378, 456 S.E.2d 459:

Reversing a conviction of first-degree murder with a recommendation of mercy where the defendant complained that his confession was the product of an illegal interrogation, the Court held that (1) where police merely question a suspect on the street, no protections against unreasonable seizure of the person are implicated; (2) where a suspect reasonably perceives that he or she is being detained and is no longer free to leave, protections against unreasonable seizure of the person are implicated, and the officer must have reasonable suspicion that criminal activity has occurred; (3) where the nature and duration of detention rise to the level of an arrest or its equivalent, the officer must have probable cause to believe that the detainee has engaged in criminal activity; and (4) without probable cause to arrest, a confession is rendered inadmissible if obtained pursuant to an officer's seizure and involuntary transportation of the suspect to a police station for interrogation.

State of West Virginia v. Gerald D. Mullins, No. 22514 (W. Va. March 3, 1995) (Fox, J.): 193 W.Va. 315, 456 S.E.2d 42:

Affirming a conviction of first-degree murder without a recommendation of mercy for a defendant whose barroom brawl resulted in the stabbing death of the decedent by another individual, the Court held that (1) a finding that two criminal actors possess a shared criminal intent does not require that the accused aider and abettor intend to commit the crime committed by the principal in the first degree where there is evidence of substantial physical participation in the crime by the accused and (2) substantial physical participation by a person charged as an aider and abettor in a criminal undertaking constitutes evidence from which a jury may properly infer an intent to assist the principal criminal actor.

State of West Virginia ex rel. Aristides Rojas v. Honorable Christopher C. Wilkes, Judge of the Circuit Court of Berkeley County, and Pamela Games-Neely, Prosecuting Attorney for Berkeley County, No. 22599 (W. Va. February 23, 1995) (Fox, J.): 193 W.Va. 206, 455 S.E.2d 575:

Where indigent criminal defendant sought court-appointed experts after his family was able to retain counsel to represent him, the Court held that (1) if financial assistance provided by a third party makes it possible for an indigent criminal defendant to have the benefit of private counsel, subjects of judicial inquiry may include the source of the funds with which private counsel was retained, the terms of the legal representation agreement, and the reasonableness of the fee arrangement, and (2) financial assistance by a third party which enables an indigent criminal defendant to have the benefit of private counsel does not affect the defendant's right to expert assistance at public expense if such assistance is essential to an effective defense.

State of West Virginia v. Samuel E. Adams, No. 22398 and State of West Virginia ex rel. Samuel Adams v. Delbert Harrison, Sheriff of Putnam County, No. 22397 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 277, 456 S.E.2d 4:

Affirming convictions of concealing and transferring stolen property where one count of the indictment was amended to change the identity of the owner of the stolen goods, the Court overruled State v. McGraw, 140 W. Va. 547, 85 S.E.2d 849 (1955) and State v. Pruitt, 178 W. Va. 147, 358 S.E.2d 231 (1987), for the proposition that any change to an indictment requires its resubmission to the grand jury, instead holding that an indictment may be amended by the circuit court, provided that (i) the amendment is not substantial, (ii) the amendment is sufficiently definite and certain, (iii) the indictment does not unfairly surprise the defendant, and (iv) any evidence available to the defendant regarding the indictment is still available.

State of West Virginia ex rel. Michele L. Rusen, Prosecuting Attorney for Wood County v. Honorable George W. Hill, Judge of the Circuit Court of Wood County, and Lisa Harder, No. 22441 (W. Va. December 21, 1994) (Cleckley, J.): 193 W.Va. 133, 454 S.E.2d 427:

Rejecting a prosecutor's attempt to overturn the dismissal, with prejudice, of an embezzlement indictment as a discovery sanction, the Court held (1) the standard for determining prejudice for discovery violations under R. Crim. P. 16 is (i) whether nondisclosure surprised the defendant regarding a material fact and (ii) whether nondisclosure hampered preparation and presentation of the defense; (2) a circuit court may dismiss criminal charges for egregious and repeated discovery violations where lesser sanctions, such as a continuance, would be disruptive to the administration of justice or would not provide the same degree of assurance that the prejudice to the defendant will be removed; and (3) a circuit court is not required to find actual prejudice in order to impose discovery sanctions pursuant to R. Crim. P. 16(d)(2), but such prejudice will be presumed from repeated violations necessitating numerous continuances and delays.

State of West Virginia ex rel. Albert Kees v. Honorable David H. Sanders, Judge of the Circuit Court of Berkeley County, No. 22368 (W. Va. December 21, 1994) (McHugh, J.): 192 W.Va. 602, 453 S.E.2d 436:

Rejecting an attempt to force a trial judge to remand a traffic case to municipal court for a new trial with court-appointed counsel, the Court held that in a municipal court proceeding on a minor traffic offense, where a judge states, in advance of trial, that notwithstanding the applicable provision which permits a jail sentence, the judge will under no condition impose one nor impose a fine so onerous that the defendant cannot pay it thereby subjecting him to a contempt charge which may result in a jail sentence, then appointment of counsel pursuant to W. Va. Code § 29-21-2(2) is not required.

State of West Virginia v. David Duane Allen, No. 22240 (W. Va. December 15, 1994) (Cleckley, J.): 193 W.Va. 172, 455 S.E.2d 541:

Reversing a conviction of third-offense DUI where the trial judge responded to jury questions during deliberations without advising counsel, the Court held that the proper method of responding to a written jury inquiry during deliberations in a criminal case is for the judge to reconvene the jury and to give further instructions, if necessary, in the presence of the defendant and counsel in the courtroom.

State of West Virginia v. Helen Jean Honaker, No. 21860 (W. Va. December 15, 1994) (Cleckley, J.): 193 W.Va. 51, 454 S.E.2d 96:

Affirming a first-degree murder conviction based, in part, on inculpatory statements made in the presence of medical personnel when the defendant was being treated for a drug overdose, the Court held (1) police involvement is necessary for finding a confession involuntary, overruling State v. Muegge, 178 W. Va. 439, 360 S.E.2d 216 (1987) and State v. Sanders, 161 W. Va. 39, 242 S.E.2d 554 (1978) and (2) in the absence of police involvement, the admissibility of inculpatory statements is to be determined by the Rules of Evidence and not constitutional standards of voluntariness. On a separate issue, the Court held that to preserve for appellate review a claim of improper impeachment of the defendant or improper rebuttal by the use of prejudicial collateral evidence, the defendant must testify or the rebuttal evidence must be introduced.

State of West Virginia ex rel. William A. Allen v. Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County, No. 22359 (W. Va. December 9, 1994) (Workman, J.): 193 W.Va. 32, 454 S.E.2d 77:

Refusing to block a DUI prosecution based, in part, on blood alcohol tests performed by hospital personnel, the Court held (1) W. Va. Code § 17C-5-4 does not govern the admissibility of blood alcohol tests conducted prior to the defendant's arrest at the direction of a treating physician or other medical personnel and (2) medical records regarding blood alcohol tests ordered by medical personnel for diagnostic purposes are subject to subpoena and not inadmissible by virtue of W. Va. Code § 57-5-4d.

State of West Virginia v. Harry E. Farmer, No. 22162 (W. Va. December 9, 1994) (McHugh, J.): 193 W.Va. 84, 454 S.E.2d 378:

Affirming a 90-year sentence for kidnapping, the Court held that a trial judge, for purposes of imposing a sentence on a defendant, convicted of kidnapping, for a period of not less than twenty or not less than ten years, has discretion to make findings as to whether the defendant inflicted bodily harm on the victim and as to whether ransom, money, or other concession has been paid or yielded for return of the victim, and because such findings are solely for the purposes of sentencing, and are not elements of the crime of kidnapping, a defendant's rights to due process and trial by jury are not violated by W. Va. Code § 61-2-14a.

State of West Virginia v. Brian Hopkins, No. 22079 (W. Va. December 8, 1994) (Neely, J.): 192 W.Va. 483, 453 S.E.2d 317:

Affirming a third-offense shoplifting conviction and sentence, the Court overruled State v. Armstrong, 175 W. Va. 381, 332 S.E.2d 837 (1985), with respect to the use of uncounseled convictions for purposes of penalty enhancement, holding that an uncounseled misdemeanor conviction, if no prison term was imposed, may be used to enhance punishment upon a subsequent conviction.

State of West Virginia v. Lyle B. McGinnis, Jr., No. 22031 (W. Va. December 8, 1994) (Cleckley, J.): 193 W.Va. 147, 455 S.E.2d 516:

Reversing a first-degree murder conviction where collateral crimes evidence was introduced involving embezzlement, arson, tax fraud, marital infidelity, and other debts, the Court held (1) when offering evidence pursuant to R. Evid. 404(b), it is not sufficient for the trial court or the prosecution to merely note the list of possible uses contained in the rule, rather the prosecution must identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence on for that purpose; (2) before admitting Rule 404(b) evidence, the trial court should conduct an in camera hearing to determine, pursuant to R. Evid. 104(a), whether there is a preponderance of evidence that the subject acts were committed by defendant and, if so established, whether the evidence is relevant under R. Evid. 401 and 402 and, if so relevant, whether the evidence meets the R. Evid. 403 balancing test; and (3) if a trial court, after conducting the appropriate in camera review, determines that the Rule 404(b) evidence is admissible, it should instruct the jury, at the time the evidence is offered and again in the general charge, on the limited purpose for which such evidence has been admitted.

State of West Virginia v. Gail B. Stuart, Jr., No. 22033 (W. Va. December 8, 1994) (Cleckley, J.): 192 W.Va. 428, 452 S.E.2d 886:

Affirming a second-offense DUI conviction where an anonymous call prompted police to look for the defendant, the Court held (1) police may stop a vehicle to investigate, contrary to State v. Meadows, 170 W. Va. 191, 292 S.E.2d 50 (1982), which the Court overrules, if they have an articulable reasonable suspicion that the vehicle is subject to seizure or a person in the vehicle has committed, is committing, or is about to commit a crime; (2) when evaluating whether particular facts establish reasonable suspicion, one must examine the totality of circumstances, including the quality and quantity of information known by police; (3) legal conclusions with respect to suppression issues are reviewed de novo and factual decisions with respect to suppression issues are reviewed under the clearly erroneous standard, with credibility determinations accorded great deference; and (4) a police officer may rely on an anonymous call if subsequent police work or other facts support its reliability and, thereby, it is sufficiently corroborated to justify the investigatory stop under a reasonable suspicion standard.

State of West Virginia ex rel. R.L. v. Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County, and Steven R. Bratke, Special Prosecuting Attorney for the State of West Virginia, No. 22495 (W. Va. December 8, 1994) (Neely, J.): 192 W.Va. 435, 452 S.E.2d 893:

Refusing to prohibit prosecution of a citizen-initiated indictment that was not signed by the prosecutor, the Court held that in cases where a grand jury returns an indictment based on a citizen's complaint and presentation, the attestation of the prosecuting attorney to the grand jury foreperson's signature is not required and the lack of such attestation, standing alone, is insufficient to vitiate the indictment and, to the extent State v. Davis, 178 W. Va. 87, 357 S.E.2d 769 (1987), State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955), State v. DeBoard, 119 W. Va. 396, 194 S.E. 349 (1937), and State v. Burnette, 118 W. Va. 501, 190 S.E. 905 (1937), indicate to the contrary, they are overruled.

State of West Virginia v. Larry Gene Kelley, Jr., No. 22205 (W. Va. November 21, 1994) (McHugh, J.): 192 W.Va. 124, 451 S.E.2d 425:

Reversing a second-degree murder conviction where the sheriff, who testified at trial, served as bailiff, the Court held that a defendant's rights to due process and a fair trial by jury are violated when a sheriff serves as bailiff and testifies as a key witness for the prosecution.

State of West Virginia v. Mark Wayne Phalen, No. 22077 (W. Va. November 21, 1994) (McHugh, J.): 192 W.Va. 267, 452 S.E.2d 70:

Affirming a forgery conviction arising from the defendant's false signature on a fingerprint card, the Court held that (1) when a person who has given a false name later admits that the name given was false, whether the defendant had the requisite intent under W. Va. Code § 61-4-5 to commit forgery is a question of fact for the jury and (2) giving a false name on a police fingerprint card may constitute forgery since the act prejudices the legal rights of the State by frustrating its authority to administer justice.

State of West Virginia v. Thomas Russell Leroy Derr, No. 22101 (W. Va. November 18, 1994) (Cleckley, J.): 192 W.Va 165, 451 S.E.2d 731:

Affirming the defendant's conviction of first-degree murder without mercy, where a number of errors were assigned, the Court held that (1) whether prospective jurors may have heard about a case is not determinative on a motion for change of venue, but rather whether those jurors have such fixed opinions that they cannot hear the evidence impartially; (2) the holding of State v. Rowe, 163 W. Va. 593, 259 S.E.2d 26 (1979), and its progeny, with respect to determining the admissibility of allegedly gruesome photographs, conflicts with R. Evi. 403 and, accordingly, is overruled; (3) the Rules of Evidence, as a comprehensive reformulation of common law evidentiary principles, provide the paramount guidance for questions of admissibility; (4) the admissibility of allegedly gruesome photographs must be determined by applying R. Evid. 401 through 403; (5) although otherwise relevant, evidence may be nevertheless be inadmissible, pursuant to R. Evid. 403, when the danger of unfair prejudice, confusion, or undue delay outweighs the value of the evidence; (6) prior to admission of an allegedly gruesome photograph, the trial court must determine (i) whether the photograph is probative, pursuant to R. Evi. 401, as to a fact of consequence in the case and, if probative, (ii) whether its probative value is outweighed by the R. Evi. 403 factors; (7) application of the R. Evi. 403 balancing test is a matter within the sound discretion of the trial court; (8) a trial court's refusal to give a requested instruction is reversible error only if (i) the instruction is a correct statement of law, (ii) the issue addressed by the instruction is not covered by another instruction, and (iii) it concerns an important issue in the trial such that the litigant's ability to effectively present the litigant's claims or defenses is seriously impaired; and (9) decisions regarding the giving of instructions are within the sound discretion of the trial court and, in criminal cases, any evidentiary issue related to the instructions are to be considered in a light most favorable to the prosecution.

State of West Virginia v. Robert Russell Farley, No. 22139 (W. Va. November 18, 1994) (Cleckley, J.): 192 W.Va. 247, 452 S.E.2d 50:

Affirming multiple convictions of first-degree arson, second-degree arson, fourth-degree arson, and falsely reporting an emergency, the Court rejected the defendant's primary contention that his confession should have been excluded because he was told by interrogating officers that he did not perform well on a polygraph examination and that they would get him help, holding that (1) the scope of appellate review of the voluntariness of a confession, as well as whether the trial court applied the proper standard in making its determination, is de novo in nature; (2) in order for an assertion of Miranda rights to compel termination of police interrogation, the suspect's words or conduct must indicate more than a desire not to comment or to answer a particular question, but must expressly demonstrate a desire to terminate all questioning; and (3) in order to determine the voluntariness of a confession where representations or promises were made to the suspect by one in authority, a trial court should consider the totality of the circumstances and, contrary to State v. Parsons, 108 W. Va. 705, 152 S.E. 745 (1930), which is overruled to this extent, no single factor is determinative.

State of West Virginia v. Melody Long, No. 22195 (W. Va. November 2, 1994) (Miller, J.): 192 W.Va. 109, 450 S.E.2d 806:

In a decision involving the sentencing options available for defendants convicted of first or second-offense DUI, the Court held that W. Va. Code § 17C-5-2(m) permits home detention and W. Va. Code § 62-11B-5(1)(A) permits authorization to travel to and from the offender's place of employment during the period of home

detention, for individuals convicted of first or second-offense DUI.

State of West Virginia v. Ronald Dillon, No. 21807 (W. Va. July 20, 1994) (Workman, J.): 191 W.Va. 648, 447 S.E.2d 583:

Affirming the drug convictions of a defendant who complained that the introduction of audiorecordings of conversations he had with a police informant who failed to appear for trial violated his right of confrontation, the Court held that proof of consent for purposes of electronic intercept under W. Va. Code §§ 62-1D-3 and 62-1D-6 need not be by the consenting person's testimony, but may be demonstrated through other evidence, such as the testimony of the person to whom consent was given.

State of West Virginia v. Mabel Lewis aka Mabel Beasley, No. 21835 (W. Va. July 19, 1994) (Workman, J.): 191 W.Va. 635, 447 S.E.2d 570:

Overturning the sentence of an habitual shoplifter, the Court held that, prior to 1994 amendment, W. Va. Code § 61-3A-3(c), which prohibited probation for third-offense shoplifters, violated the proportionality principle contained in the cruel and unusual punishment clauses of U.S. Const. amend. VIII and W. Va. Const. art. III, § 5.

State of West Virginia v. Robert Earl Kirkland, Jr., No. 21759 (W. Va. July 15, 1994) (Workman, J.): 191 W.Va. 586, 447 S.E.2d 278:

Reversing multiple convictions due to insufficiency of the evidence, see also State v. Mayo, 191 W. Va. 79, 443 S.E.2d 236 (1994), the Court held on an unrelated issue that a trial court should conduct an evidentiary hearing on allegations of the discriminatory use of peremptory strikes only if the trial court determines that the prosecutor's allegedly nondiscriminatory reasons warrant further exploration.

State of West Virginia ex rel. Marshall Goff v. Honorable Rodney B. Merrifield, Judge of the Circuit Court of Marion County, and Ron Watkins, Sheriff of Marion County, No. 22088 (W. Va. June 17, 1994) (McHugh, J.): 191 W.Va. 473, 446 S.E.2d 695:

Reversing a trial court's refusal to grant good-time and trustee credit for a prisoner consecutively sentenced to a jail term of six months as a condition of probation on one count and six-months on another count, the Court held (1) a person who is ordered to serve a six-month period in the county jail as a condition of probation for one offense consecutive to an additional jail term of six-months on another offense is eligible for good crime credit pursuant to W. Va. Code § 7-8-11 and (2) when a person is ordered to confinement in the county jail as a condition of probation and performs work as a trustee within the jail, that person is entitled to a reduction in sentence in accordance with the provisions of W. Va. Code § 17-15-4.

State of West Virginia v. Lanny Crouch, Jr., No. 21883 (W. Va. May 26, 1994) (Neely, J.): 191 W.Va. 272, 445 S.E.2d 213:

Affirming a first-degree murder conviction in which the defendant complained that a private attorney hired by the victim's family virtually handled the entire case, the Court held that, pursuant to § 7-7-8, the employment of a practicing lawyer to assist the State in a criminal prosecution is not prohibited.

In the Matter of an Investigation of the West Virginia State Police, Serology Division, No. 21973 (W. Va. May 20, 1994) (Miller, J.): 191 W.Va. 224, 445 S.E.2d 165:

Formally closing the investigation of the state police crime laboratory, the Court held that serology reports prepared by employees of the Serology Division of the West Virginia State Police Crime Laboratory, other than Trooper Fred S. Zain, are not subject to the invalidation and other strictures contained in In the Matter of an Investigation of the West Virginia State Police Crime Lab, Serology Division, 190 W. Va. 321, 438 S.E.2d 501 (1993).

State of West Virginia ex rel. Eustace Brown, Derek Johnson, Vincent Nelson, and Donnie Smalls v. Jerry Dietrick, Administrator, Eastern Regional Jail, and the Honorable Gail Boober, Jefferson County Magistrate, No. 21904 (W. Va. April 20, 1994) (Miller, J): 191 W.Va. 169, 444 S.E.2d 47:

State of West Virginia ex rel. John R. Modie v. Honorable George W. Hill, Jr., Judge of the Court of Wood County, No. 22126 (W. Va. March 28, 1994) (McHugh, J.): 191 W.Va. 100, 443 S.E.2d 257:

Prohibiting trial of a defendant held on a detainer lodged in Ohio more than 180 days prior to his trial, the Court held that the failure of the State to bring an accused to trial within 180 days following the State's receipt of the petitioner's notice of imprisonment and request for final disposition, pursuant to the Agreement on Detainers, W. Va. Code § 62-14-1, mandates dismissal of the indictments pending against the petitioner, where there was no motion for continuance made by the State and the delay was not reasonable or necessary.

State of West Virginia v. Ronnie Wayne Jenkins, No. 21775 (W. Va. March 25, 1994) (Miller, J.): 191 W.Va. 87, 443 S.E.2d 244:

Reversing a first-degree murder without mercy conviction on instruction error which unconstitutionally shifted the burden of proof, the Court held (1) a first-degree murder instruction that informs the jury that malice need not be shown is erroneous; (2) a first-degree murder instruction that informs the jury that intent, malice, wilfullness, deliberation, and premediation may be inferred from the use of a deadly weapon is erroneous where there is evidence that the defendant's actions were based on some legal excuse, justification, or provocation, and anything to the contrary in State v. Louk, 171 W. Va. 639, 643, 301 S.E.2d 596, 600 (1983), is disapproved; and (3) an instruction which informs the jury that it may find the defendant guilty of first-degree murder if it finds he used a deadly weapon to kill the deceased unconstitutionally shifts the burden of proof.

State of West Virginia v. William Ulysses Mayo, Jr., No. 21760 (W. Va. March 25, 1994) (Miller, J.): 191 W.Va. 79, 443 S.E.2d 236:

Reversing a conviction of second-degree murder, attempted second-degree murder, and unlawful wounding, arising from a confrontation between a companion of the defendant and a merchant, the Court reiterated its holding in Syllabus Point 9 of State v. Fortner, 182 W. Va. 345, 387 S.E.2d 812 (1989), that merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his non-interference was one of the conditions of the commission of the crime; or unless his non-interference was designed by him and operated as an encouragement to or protection of the perpetrator.

State of West Virginia v. Harry Jarrell, No. 21625 (W. Va. February 18, 1994) (Brotherton, J.): 191 W.Va. 1, 442 S.E.2d 223:

Reversing a murder conviction where grand jury testimony of the defendant's sister, who was declared incompetent to testify at trial, was admitted into evidence despite the defendant's sixth amendment objection, the Court reiterated its holding that the sixth amendment guarantees an accused the right to confront, i.e., to cross-examine, witnesses against him or her.

State of West Virginia v. Thomas J. Blair, III, No. 21558 (W. Va. December 14, 1993) (McHugh, J.): 190 W.Va 425, 438 S.E.2d 605:

Reversing the conviction of a local water company president for providing inadequate facilities, the Court held that the statute under which he was prosecuted, W. Va. Code § 24-3-1 is unconstitutionally vague because the language "establish and maintain adequate and suitable facilities" and "perform such service . . . as shall be reasonable, safe and sufficient for the security and convenience of the public" does not provide adequate standards for adjudication or set forth with requisite clarity the specific acts prohibited.

State of West Virginia v. David Leadingham, No. 21678 (W. Va. December 14, 1993) (McHugh, J.): 190 W.Va. 482, 438 S.E.2d 825:

Where police used informant to elicit information from the defendant who had been sent to a psychiatric facility for an evaluation, the Court reversed, holding that it is a due process violation rights for law enforcement to use an informant to penetrate the clinical environment of a psychiatric institution in order to elicit incriminating statements from a defendant who is undergoing a court-ordered evaluation.

State of West Virginia v. George W.H., No. 21658 (W. Va. December 13, 1993) (Miller, J.): 190 W.Va. 558, 439 S.E.2d 423:

Reversing convictions of sexual abuse by a custodian, which did not exist at the time of the alleged crimes, and sexual assault in the second degree, whose definition of "forcible compulsion" did not exist at the time of the alleged crimes, the Court reaffirmed its holding in Syl. pt. 1 of Adkins v. Bordenkircher, 164 W. Va. 292, 262 S.E.2d 885 (1980), that under ex post facto principles of the federal and state constitution, a law passed after commission of an offense which operates to his or her detriment cannot be applied to the accused.

State of West Virginia v. Charles R. Kilmer, No. 21504 (W. Va. December 10, 1993) (Workman, C.J.): 190 W.Va. 617, 439 S.E.2d 881:

Affirming a conviction of first degree murder without mercy, the Court rejected an argument that due process requires the taping of police interrogations, holding that W. Va. Const. art. III, § 10, does not mandate that police electronically record custodial interrogations.

State of West Virginia v. Ronzel Richards, No. 21564 (W. Va. November 23, 1993) (Brotherton, J.): 190 W.Va. 299, 438 S.E.2d 331:

Reversing two malicious wounding convictions where the prosecution introduced evidence of prior convictions, the Court held (1) the mentioning of character issues by defense counsel during opening statements does not open the door for the introduction of otherwise inadmissible character evidence, and (2) the state may not seek W. Va. Code § 62-12-2 enhancement for use of a firearm during the commission of a crime unless it gives the defendant notice pursuant to Syllabus Point 2 of State v. Johnson, 187 W. Va. 360, 419 S.E.2d 300 (1992).

In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division, No. 21973 (W. Va. November 10, 1993) (Miller, J.): 190 W.Va. 321, 438 S.E.2d 501:

Adopting the findings, conclusions, and recommendations of a special judge appointed to investigate allegations of impropriety in state police crime lab, the Court held that although it is a violation of due process to convict a defendant on false evidence, such conviction will not be set aside unless the false evidence had a material effect on the guilty verdict.

State of West Virginia v. Lisa A. Nelson, No. 21568 (W. Va. October 14, 1993) (Neely, J.): 190 W.Va. 73, 436 S.E.2d 308:

Where prosecution failed to demonstrate that defendant falsely signed voter's registration card or improperly submitted it for filing, the Court reversed, reiterating that circumstantial evidence will not support a guilty verdict unless guilt is proved to the exclusion of every reasonable hypothesis of innocence.

State of West Virginia v. Dawnella Rogers, No. 21516 (W. Va. July 22, 1993) (Workman, C.J.): 189 W.Va. 730, 434 S.E.2d 402:

Rejecting a defendant's attempt to secure an appeal following expiration of the appeal period while the defendant was a fugitive, the Court held that a criminal defendant does not present good cause for resentencing where the reason for failing to pursue an appeal was that the defendant voluntarily absconded from custody during the statutorily-prescribed appeal period.

State of West Virginia v. Lisa A. Nelson, No. 21273 (W. Va. July 22, 1993) (Workman, C.J.): 189 W.Va. 778, 434 S.E.2d 697:

Affirming a conviction of fraudulently secreting a public record for a police records clerk who falsely reported a criminal record, the Court rejected the defense that as custodian of the record, she could not be convicted under W. Va. Code § 61-5-3, holding that a position of mere public employment which requires providing information to the public based upon a review of public records is not equivalent to an officer in lawful charge of the public records for purposes of W. Va. Code § 61-5-3.

State of West Virginia v. Charles Daniel O'Donnell, No. 21143 (W. Va. July 22, 1993) (Workman, C.J.): 189 W.Va. 628, 433 S.E.2d 566:

Where the alleged wife/victim wrote a letter to her husband/defendant following his conviction for multiple counts of sexual assault in which she recanted her trial testimony that an evening of group sex with three men was nonconsensual, the Court awarded a new trial, holding that newly-discovered evidence is not cumulative if it is either of a different kind or on a different issue as was presented at trial.

State of West Virginia ex rel. Cindy Walls v. Patricia Noland, as a Magistrate of Jefferson County, and Michael D. Thompson, as Prosecuting Attorney, No. 21495 (W. Va. July 16, 1993) (Brotherton, J.): 189 W.Va. 603, 433 S.E.2d 541:

Upholding the constitutionality of the worthless check statute, the Court held that the statutory complaint form contained in W. Va. Code § 61-3-39f is constitutionally sufficient because it requires a detailed itemization of the relevant facts and provides a sufficient basis for an independent determination of whether there is probable cause to proceed with a prosecution.

State v. Gary F., an infant, and Debbie F., his mother, No. 21412 (W. Va. June 28, 1993) (Workman, C.J.): 189 W.Va. 523, 432 S.E.2d 793:

Where primary witness at transfer hearing was not disclosed to the juvenile during discovery and testified telephonically, the Court reversed, holding that (1) the continuing disclosure requirement imposed by R. Crim. P. 16 applies to juvenile transfer proceedings and (2) telephonic testimony constitutes a denial of a juvenile's right to confrontation.

State of West Virginia v. Sean Romane Harris, No. 21400 (W. Va. June 9, 1993)(Neely, J.): 189 W.Va. 423, 432 S.E.2d 93:

Reversing the sexual assault conviction of a black defendant accused of raping a white victim where the prosecutor failed to state on the record her reasons for exercising peremptory challenges to remove three black jurors, the Court held that where racial bias is like to influence a jury, an inquiry must be made into such bias.

State of West Virginia v. Ronald Dean Rummer, No. 21095 (W. Va. May 25, 1993) (Miller, J.): 189 W.Va. 369, 432 S.E.2d 39:

Where defendant allegedly attacked victim, first grabbing her vagina and then her breasts, the Court sustained his conviction of two counts of sexual abuse, holding that a defendant who commits two or more of the separate acts of sexual contact defined in W. Va. Code § 61-8B-1(6) may be convicted of each separate act without a violation of double jeopardy principles.

State of West Virginia v. Timothy Layton, No. 21173 (W. Va. April 27, 1993) (Brotherton, J.): 189 W.Va. 470, 432 S.E.2d 740:

Where defendant who was convicted of aggravated robbery complained that standby counsel allowed the defendant to take the stand even though counsel intended not to question the defendant because counsel believed that the defendant intended to commit perjury, the Court affirmed, holding that when a defendant indicates that he or she is contemplating the commission of perjury, it is not ineffective assistance of counsel for the trial court to direct the defendant's attorney to refrain from participating in the examination of the defendant and to require the defendant to testify in a narrative fashion.

State of West Virginia ex rel. Angela McClanahan v. Honorable John Hamilton, Judge of the Circuit Court of Pendleton County, No. 21523 (W. Va. April 23, 1993) (Miller, J.): 189 W.Va. 290, 430 S.E.2d 569:

Concluding that the trial court should have disqualified the prosecuting attorney who had represented the defendant, charged with maliciously assaulting her husband, in an earlier divorce matter in which she had divulged information regarding her husband's abusive behavior, the Court held (1) R. Prof. Cond. 1.9(a) precludes an attorney who has formerly represented a client from representing another person in a substantially related matter that is materially adverse to the interests of the former client unless the former client consents after consultation and (2) once a former client has established that a former attorney is representing a party in a substantially related matter, the former client need not demonstrate that confidential information was divulged, which will be presumed from the relationship.

Andrew Keith Peyatt v. Donald L. Kopp, Magistrate, and Edmund J. Matko, Prosecuting Attorney for Harrison County, No. 20999 (W. Va. March 12, 1993) (McHugh, J.): 189 W.Va. 114, 428 S.E.2d 535:

Reversing an order directing a magistrate to conduct a new preliminary hearing in a sexual abuse case after the defendant complained regarding the magistrate's refusal to permit his presentation of evidence at such hearing, the Court held that a magistrate has discretion to allow hearsay evidence at a preliminary hearing if (1) the source of the hearsay is credible; (2) there is a factual basis for the hearsay; and (3) it would be an unreasonable burden to require testimony by the primary source of the evidence. On a related issue, the Court held that a writ of prohibition cannot issue against the presentation of a case to a grand jury by a prosecutor who believes that probable cause exists to support a conclusion that the suspect has committed a offense.

State of West Virginia ex rel. Jeffrey B. Reed, Prosecuting Attorney for Wood County v. Honorable Daniel B. Douglass, Judge of the Circuit Court of Wood County, and Dean Ray Buckley, No. 21520 (W. Va. February 16, 1993) (Miller, J.): 189 W.Va. 56, 427 S.E.2d 751:

Reversing the award of early release from probation where the prosecution was not granted an opportunity to oppose the defendant's motion, the Court held that when a defendant moves to obtain a favorable modification of the terms of probation under R. Crim. P. 32.1(b), the prosecuting attorney is entitled to reasonable notice of the motion for modification and an opportunity to be heard.

State of West Virginia v. Susan A. Carrico, No. 21299 (W. Va. February 11, 1993) (Neely, J.): 189 W.Va. 40, 427 S.E.2d 474:

Affirming the arson conviction of a wo man charged with burning her home, the Court held (1) a two-year delay in the return of an indictment, during which time an investigation was being conducted, did not violate her constitutional rights; (2) a dismissal nolle prosequi during the third term of court following her indictment did not violate the three-term rule because she was tried within the same term; and (3) the admission of incriminating statements made by her son to two of his friends did not violate the hearsay rule because (a) the statements were inconsistent with his trial testimony; (b) her son was given an opportunity at her trial to explain those statements; and (c) she was given an opportunity to cross-examine both of her son's friends at trial.

State of West Virginia ex rel. Patricia V. Kutsch, Prosecuting Attorney of Ohio County v. Honorable Ronald E. Wilson, Circuit Judge of Ohio County, and Earl Thomas Beals, No. 21530 (W. Va. February 11, 1993) (Neely, J.): 189 W.Va. 47, 427 S.E.2d 481:

Reversing a trial court's decision to suppress an Ohio conviction which was to be introduced in conjunction with the defendant's charge of third-offense DUI, the Court held that a person convicted of driving under the influence under an Ohio statute that makes it an offense to operate a motor vehicle with "a concentration of ten hundredths of one gram or more by weight of alcohol per two hundred liters of his breath" has committed an offense with "the same elements" as the offense set forth in W. Va. Code § 17C-5-2(d)(1)(E) of operating a motor vehicle with "an alcohol concentration in his blood of ten hundredths of one percent or by weight."

Curtis Mangus v. Honorable Charles E. McCarty, Judge of the Circuit Court of Calhoun County and Patricia L. McCartney, Probation Officer for Calhoun County, No. 21310 (W. Va. December 18, 1992) (Workman, J.): 188 W.Va. 563, 425 S.E.2d 239:

Where a probation revocation warrant was issued, but not served, until after expiration of the probation period, the Court blocked probation proceedings, holding that in order exercise jurisdiction to revoke probation subsequent to the expiration of the probationary period, the probationer must have been charged with the violation prior to the expiration.

State of West Virginia v. David White, No. 20962 (W. Va. December 17, 1992) (Workman, J.): 188 W.Va. 534, 425 S.E.2d 210:

Reversing a trial court's imposition of a jail sentence of five months and twenty-nine days as a condition of the granting of five years' probation, the Court held that if a trial court imposes a jail sentence as a condition of probation, the period of incarceration may not exceed the maximum one-third of the minimum statutory sentence pursuant to W. Va. Code § 62-12-9(4).

State of West Virginia v. Richard C. Seibert, Jr., No. 20931 (W. Va. December 17, 1992) (Brotherton, J.): 189 W.Va. 201, 429 S.E.2d 243:

Reversing the dismissal of an indictment for sexual assault where a previous indictment for the same offense had been dismissed, the Court held that dismissal of an indictment does not ordinarily foreclose the prosecutor from procuring a new indictment and that dismissal does not constitute return of a "not true bill" sufficient to trigger W. Va. Code § 52-2-9.

State of West Virginia v. Jack Earl Walker, No. 21023 (W. Va. December 17, 1992) (Neely, J.): 188 W.Va. 661, 425 S.E.2d 616:

Reversing a conviction of felony murder and arson on the grounds that the trial court erred in admitting evidence of (1) the defendant's ownership of certain firearms when such firearms could not have been used in the victim's murder; (2) petty thefts that had occurred in the vicinity of the crime when there was no evidence to link such thefts to the defendant; (3) a statement by the defendant, several months prior to the crime, that if anyone ever crossed him that he would "burn them down;" and, (4) hearsay statements made by a neighbor of the decedent concerning the defendant's presence in the area on the day of the crime, reiterating its holding that where the record of a criminal trial shows the cumulative effect of numerous errors which prevented the defendant from receiving a fair trial, the conviction should be set aside. On an unrelated issue, the Court held that the prosecution can withhold its decision regarding whether it intends to proceed on a premeditated or felony murder theory until the close of all the evidence, but that if the defendant makes a strong showing that he or she will be prejudiced by such delay, it is within the discretion of the trial court to direct an election by the prosecution.

Karl S. Dietz v. Carl Legursky, No. 21144 (W. Va. December 16, 1992) (McHugh, C.J.): 188 W.Va. 526, 425 S.E.2d 202:

Where trial judge stated he would declare a mistrial if the defendant did not testify after the defendant objected to the trial judge's statement during voir dire that the defendant would testify, but failed to declare such mistrial despite the exercise of the defendant's right not to testify, the Court ordered a new trial, holding that where a trial court represents that a mistrial will be declared if a criminal defendant does not testify, and the defendant does not testify in reliance upon such representation, it is reversible error for the trial court not to declare a mistrial. On a separate issue regarding the admissibility of opinion evidence regarding the victim's propensity for violence, where the defendant was not aware of such propensity, the Court, adopting Professor Cleckley's interpretation of R. Evi. 404(a)(2), held that where a defendant relies on self-defense or provocation, character evidence in the form of opinion testimony under R. Evi. 404(a)(2) and 405(a) may be admitted to show that the victim was the aggressor if the probative value of such evidence is not outweighed by the concerns set forth in R. Evi. 403.

David C. Harman, Magistrate for Mineral County v. Honorable Andrew N. Frye, Jr., Judge of the Twenty-First Judicial Circuit, No. 21233 (W. Va. December 15, 1992) (McHugh, C.J.): 188 W.Va. 611, 425 S.E.2d 566:

Abolishing the citizen complaint procedure for initiating criminal prosecutions, the Court held that, beginning on April 1, 1993, except where there is a specific statutory exception, a magistrate may not issue a warrant or summons for a misdemeanor or felony solely upon the complaint of a private citizen without a prior evaluation of the citizen's complaint by the prosecuting attorney or an investigation by the appropriate law enforcement agency. On a separate issue, the Court held that, in cases involving cross-warrants, where it would be improper for the prosecutor to act, trial courts should appoint special prosecutors pursuant to W. Va. Code § 7-7-8.

United States of America v. John P. Dobkin, aka Jack Dobkin; and Benjamin C. Dobkin, No. 21229 (W. Va. October 22, 1992) (Neely, J.): 188 W.Va. 209, 423 S.E.2d 612:

Interpreting statutes regulating the control of gambling devices on a certified question from federal district court, the Court held (1) reimbursement to a video poker machine player in money or anything of value, except free plays, constitutes gambling under W. Va. Code §61-10-1; (2) betting on the outcome of a video poker machine constitutes gambling under W. Va. Code §61-10-5; (3) permitting the use of a video poker machine for gambling purposes in a hotel, tavern or other location constitutes a violation of W. Va Code § 61-10-6; and (4) use of a video poker machine for gambling purposes does not constitute a violation of W. Va. Code §61-10-11.

State of West Virginia v. James R., II, No. 20933 (W. Va. October 9, 1992) (Brotherton, J.): 188 W.Va. 44, 422 S.E.2d 521:

Overturning a ruling which prohibited a prosecutor from representing the State in criminal proceedings in which the prosecutor had formerly represented the State in abuse and neglect proceedings, the Court held that such prior representation was insufficient to support disqualification of the prosecutor in the criminal proceedings, particularly in light of its further holding that no evidence acquired from a parent or custodian as the result of examinations performed in the course of abuse and neglect proceedings may be used in any subsequent criminal proceedings.

State of West Virginia ex rel. O.C. Spaulding, Prosecuting Attorney for Putnam County v. Honorable Clarence L. Watt, Judge of the Circuit Court of Putnam County, and Mark J. McClelland, No. 21304 (W. Va. September 17, 1992) (Miller, J.): 188 W.Va. 124, 423 S.E.2d 217:

Overturning the award of post-conviction bail to a defendant convicted of first-degree sexual assault, the Court held that because first-degree sexual assault involves violence, it is subject to the provisions of W. Va. Code § 62-1C-1(b), which prohibits the award of post-conviction bail by circuit judges for certain types of offenses.

State of West Virginia v. Donald Wayne Triplett, No. 20172 (W. Va. July 23, 1992) (Workman, J.): 187 W.Va. 760, 421 S.E.2d 511:

Affirming a conviction of first-degree murder without mercy of a defendant charged with killing an acquaintance, the Court held that (1) it is permissible to allow jurors to take notes as long as proper voir dire is permitted concerning the jurors' capacity to take notes, and a cautionary instruction is given concerning the proper and improper uses of notetaking; (2) it is improper for a trial court to reduce a verdict of first-degree murder without mercy to first-degree murder with mercy; and (3) ineffective assistance will rarely be found on appeal, but should be developed in a habeas corpus proceeding.

State of West Virginia v. Richard A. Knotts, No. 20522 (W. Va. July 23, 1992) (Workman, J.): 187 W.Va. 795, 421 S.E.2d 917:

Affirming the first-degree murder without mercy conviction of a defendant charged with killing the current boyfriend of his brother's ex-girlfriend, the Court found permissible the use of an otherwise inadmissible statement for impeachment purposes, holding that where a voluntary statement is inadmissible due to a violation of the prompt presentment statute, the statement may be admissible for impeachment purposes if the accused testifies inconsistent with the statement.

State of West Virginia v. Carl Morris, No. 20906 (W. Va. July 22, 1992) (Brotherton, J.) (as modified): 187 W.Va. 737, 421 S.E.2d 488:

Extending its holding in State ex rel. Moomau v. Hamilton, 184 W. Va. 251, 400 S.E.2d 259 (1990), the Court held that a defendant convicted of driving while DUI-revoked for a third or subsequent offense is not eligible for probation, home confinement, or other alternative sentencing. Later, however, in a modified opinion filed July 22, 1992, the Court imposed a moratorium on the statute, permitting home confinement until the opening of the new penitentiary.

State of West Virginia v. Marvin John Thomas, No. 20676 (W. Va. July 15, 1992) (Neely, J.): 187 W.Va. 686, 421 S.E.2d 227:

In an important case involving the processing of forensic evidence, the Court reversed a conviction of first-degree murder, holding that (1) when the government performs a complicated test on evidence that is important to the determination of guilt, and in so doing eliminates the possibility of an independent replication of the test, the government must preserve as much documentation of the test as is reasonably possible to allow for a full and fair examination of the results by the defendant's experts. On separate issues, the Court held that (1) the existence of probable cause for issuing warrants will be reviewed using a totality of the circumstances test; (2) identical facts can provide probable cause supporting the issuance of more than one search warrant; and, (3) when false or unreliable information is presented to secure a warrant, the warrant is still valid if probable cause would have existed, based upon other evidence considered by the magistrate, in the absence of the false or unreliable information.

State of West Virginia v. Jay Montgomery Brown, No. 20472 (W. Va. July 10, 1992) (Workman, J.): 188 W.Va. 12, 422 S.E.2d 489:

Overturning the dismissal of an indictment for 17 counts of embezzlement by a public official, the Court held that embezzlement by a public official, under W. Va. Code § 61-3-20, does not require evidence of specific intent, but evidence that the public official intended to perform the act that resulted in embezzlement is alone sufficient.

State of West Virginia v. Michael Lewis, No. 20930 (W. Va. July 6, 1992) (Miller, J.): 188 W.Va. 85, 422 S.E.2d 807:

Rejecting an attempt to seek interlocutory review of the denial of a motion to suppress, the Court held that W. Va. Code § 58-5-2 does not permit the certification of questions in criminal cases. On another issue, the Court held that although the prosecution can promptly seek a writ of prohibition in a criminal case where the trial judge lacks jurisdiction or has abused discretion, if it relies upon the latter ground, it must demonstrate that the judge's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction.

State of West Virginia v. Gary Paul Kerns, No. 20485 (W. Va. July 1, 1992) (McHugh, C.J.): 187 W.Va. 620, 420 S.E.2d 891:

Rejecting the imposition of payment of special prosecutor fees pursuant to a criminal conviction, the Court held that W. Va. Code § 62-12-9 does not allow a circuit court to impose, as a condition of probation, the payment of special prosecutor fees. On a separate issue, the Court also noted that where a special prosecutor is appointed due to the disqualification of the regular prosecutor, it is not error for the trial court to deny a motion to remove the special prosecutor following reindictment when the reasons for the regular prosecutor's initial disqualification remain in effect.

State of West Virginia v. William Jones, No. 20657 (W. Va. June 26, 1992) (Miller, J.) 187 W.Va. 600, 420 S.E.2d 736:

Affirming the habitual criminal conviction of a defendant who held a Sears repairman hostage until his stove was repaired or replaced, the Court held (1) the remoteness of prior felonies is irrelevant for purposes of habitual criminal prosecutions; (2) imposition of a life recidivist sentence does not depend on the prior imposition of the 5-year enhancement under W. Va. Code § 61-11-18; and (3) where more than the statutory number of prior convictions have been proved, excess convictions are surplusage and do not affect the validity of a habitual criminal conviction.

State of West Virginia v. Patrick Shawn Johnson, No. 20197 and State of West Virginia v. Larry Barber, (W. Va. May 29, 1992) (Miller, J.) 187 W.Va. 360, 419 S.E.2d 300:

Affirming sentence enhancements imposed following jury findings regarding use of a firearm, the Court held that (1) W. Va. Code § 62-12-2 prohibits probation for a person convicted of committing a felony with the use, presentment, or brandishing of a firearm; (2) W. Va. Code § 21-12-2 allows the prosecution to give notice of intention to seek enhancement by either a statement in the indictment or other written statement; and (3) a trial court has no obligation to inform the jury of the effect of the finding of use of a firearm.

State of West Virginia v. Gary Wheeler, No. 20286 (W. Va. May 28, 1992) (Brotherton, J.) 187 W.Va. 379, 419 S.E.2d 447:

Rejecting a claim of reversible error arising from testimony by the victim's widow, the Court held that although evidence that a homicide victim was survived by a spouse or children is inadmissible, the admission of such evidence does not necessarily constitute reversible error.

State of West Virginia v. Robert M. Gray, No. 20733 (W. Va. May 28, 1992) (Neely, J.) 187 W.Va. 283, 418 S.E.2d 597:

Affirming the defendant's conviction of killing an off-duty deputy sheriff performing insurance surveillance work during a foiled arson, the Court rejected the contention that the jury had been tainted by members by personal knowledge of a codefendant's guilty plea acquired during their service on the codefendant's jury, holding that a juror is not disqualified solely because he or she was impaneled to serve as a juror at the trial of a different defendant charged with crimes arising from the same events.

State of West Virginia v. Denzil Delaney, No. 19837 (W. Va. April 16, 1992) (Brotherton, J.): 187 W.Va. 212, 417 S.E.2d 903:

Affirming a six-count conviction of sexual assault, the Court rejected the defendant's argument that the trial court erred in refusing to permit the alleged child victims to be physically and psychologically examined by his experts, holding that a defendant must present evidence of a "compelling need or reason" for such examinations. The Court set forth a six-part test for determining when independent examinations may be warranted: (1) the nature of the examination requested; (2) the age of the victim; (3) the potential trauma to the victim; (4) the probative value of the results of the requested examination; (5) the period of time since the alleged criminal act; and, (6) the evidence already available to the defendant.

State of West Virginia ex rel. Frankie Allan Phillips v. Shirley Boggess, Court Reporter for the Circuit Court of Nicholas County, No. 20914 (W. Va. April 3, 1992) (McHugh, C.J.): 187 W.Va. 153, 416 S.E.2d 270:

After circuit court ordered court reporter not to prepare a transcript for a defendant whose guilty plea was contingent upon his agreement not to pursue his appeal rights, the Court held that (1) a transcript request is not tantamount to an appeal; (2) an indigent criminal defendant is entitled to a trial transcript without endangering a plea agreement contingent upon his forsaking his appeal rights; and (3) if such defendant chooses to file a timely appeal, the prosecution may move to rescind the plea agreement.

State of West Virginia v. Terry A. Gill, No. 20155 (W. Va. March 24, 1992) (Miller, J.): 187 W.Va. 136, 416 S.E.2d 253:

Affirming convictions of sexual assault, sexual abuse, and sexual abuse by a parent, custodian, or guardian, for the same acts, the Court rejected the defendant's double jeopardy arguments, holding that (1) the Blockburger "same evidence" test does not apply where there is clear indication of a contrary legislative intent; (2) a claim that the double jeopardy clause has been violated based upon multiple punishments for the same act is to be resolved by determining the legislative intent as to punishment; (3) where legislative intent is not clear, the Blockburger test should be applied; and (4) a legislative statement in W. Va. Code § 61-8D-5(a), the sexual abuse by a parent, custodian, or guardian statute, that "[i]n addition to any other offenses set forth in this code, the Legislature hereby declares a separate and distinct offense under this subsection," clearly and unequivocally establishes a legislative intent for multiple punishments for the same criminal acts when the statutory criteria are met.

Committee on Legal Ethics of The West Virginia State Bar v. Charles F. Printz, Jr., No. 20665 (W. Va. March 23, 1992) (Neely, J.): 187 W.Va. 182, 416 S.E.2d 720:

Holding that it would have been improper to prosecute an attorney for compounding a felony or misprision of a felony under W. Va. Code § 61-5-19, the Court held that a penal statute may become void under the doctrine of desuetude if (1) the statute proscribes acts that are malum prohibitum and not malum in se; (2) there has been open, notorious, and pervasive violation of the statute for a long period; and (3) there has been a conspicuous policy of nonenforcement of the statute.

Gary Allen Gibson v. Carl E. Legursky, Warden, West Virginia Penitentiary, No. 20628 (W. Va. March 5, 1992) (Miller, J.): 187 W.Va. 51, 415 S.E.2d 457:

Rejecting a habeas corpus challenge to the multiple use of felony convictions to impose two separate life recidivist sentences, the Court held that double jeopardy principles are not violated merely because earlier convictions used to establish a recidivist conviction are subsequently used to support a second recidivist conviction.

State of West Virginia v. Kennie Childers, No. 20426 (W. Va. March 5, 1992) (Miller, J.): 187 W.Va. 54, 415 S.E.2d 460:

Reversing the conviction of a coal company president who violated an administrative order to secure a wage bond on the grounds that the indictment named the wrong statute and otherwise failed to specify the elements of the offense charged, the Court held (1) it is not essential to name the corporation in an indictment of a corporate officer as long as the officer is identified and the elements of the crime are alleged, and (2) corporate officers, agents, and directors may be criminally liable if they cause the corporation to violate criminal statutes while conducting corporate business.

State of West Virginia v. Phillip A. Ward, No. 19797 (W. Va. July 29, 1991) (Workman, J.): 188 W.Va. 380, 424 S.E.2d 725:

Where counsel for the defendant, who was convicted of first-degree murder without a recommendation of mercy and aggravated robbery, was not provided with an eyewitness statement that the another individual, not fitting the defendant's description, was observed at the scene of the crime, the Court rejected a Brady challenge, applying a harmless error analysis. Where the trial court refused to permit the defendant's uncle to testify on rebuttal to explain where he had obtained money used to buy a stereo on the day of the murder, on the grounds that such witness had to been disclosed during discovery and failed to comply with a seques ration order, the Court firmed, holding that (1) if a defendant's explanation for failure to disclose the identity of a witness indicates that the omission was willful and motivated by a desire to obtain a tactical advantage, a trial court may preclude the undisclosed witness from testifying, and (2) the preclusion of testimony for violating a sequestration order is proper where the violation undermines the integrity of the evidence sought to be presented.

State of West Virginia ex rel. Lawrence Redman, Jr. v. Jerry C. Hedrick, Warden, West Virginia Penitentiary, No. 19510 (W. Va. July 25, 1991) (McHugh, J.): 185 W.Va. 709, 408 S.E.2d 659:

Where the defendant was not present at a hearing on a motion to continue, which was granted, and a hearing on a motion to change the place of detention, which was also granted, the Court affirmed, holding that a criminal defendant's absence at a critical stage of the proceedings is not reversible error where there was no possibility of prejudice. Where the trial judge who presided over the grand jury proceedings had served as an assistant prosecutor during the initial stages of the defendant's prosecution, the Court reversed and remanded, holding that when such a potential conflict is challenged, the record of the grand jury proceeding must be made a part of the record in order to determine whether the defendant suffered any prejudice.

State of West Virginia v. Karen Sue DeBerry, No. 19990 (W. Va. July 25, 1991) (McHugh, J.): 185 W.Va. 512, 408 S.E.2d 91:

Where mother encouraged her 12-year-old daughter to consume alcohol at a party until she lost consciousness, gave her daughter's unconscious body to a man at the party to carry home where he raped her, after which the daughter died from acute ethanol intoxication, the Court reversed a trial court's dismissal of a charge of causing serious bodily injury to a child by felonious neglect, holding that (1) there is no requirement of proof of intent in a prosecution under W. Va. Code § 61-8D-4(b) for felonious neglect of a minor child causing serious bodily injury, and (2) the use of the term "neglect" in W. Va. Code § 61-8D-4(b), which is defined in W. Va. Code § 61-8D-1(6) as "unreasonable failure by a parent . . . to exercise a minimum degree of care to assure said minor child's physical safety or health," does not render the statute unconstitutionally vague, because it gives persons of ordinary intelligence fair notice of the conduct prohibited and provides adequate standards for adjudication.

State of West Virginia v. Raymond Hayes, No. 19783 (W. Va. July 12, 1991) (McHugh, J.): 185 W.Va. 664, 408 S.E.2d 614:

Where defendant was convicted of issuing a worthless check for payment of a security deposit, the Court affirmed, holding that (1) W. Va. Code § 61-3-39 and § 61-3-39a are not void for vagueness, and (2) a violation of W. Va. Code § 61-3-39a, issuance of a worthless check for a preexisting debt, is not a lesser included offense of W. Va. Code § 61-3-939, issuance of a worthless check to obtain property or a thing of value, which includes a security deposit.

State of West Virginia v. Lola Mae C., No. 19707 (W. Va. July 11, 1991) (Workman, J.): 185 W.Va. 452, 408 S.E.2d 31:

Where prosecution of the defendant, charged with sexually assaulting her stepson by inserting her finger in the boy's anus in preparation of insertion of his father's penis, included the introduction of evidence of assaults by the father of the victim when the defendant was not present, the Court affirmed under the "lustful disposition" exception to R. Evid. 404(b) of State v. Charles Edward L., 183 W.Va. 641, 398 S.E.2d 123 (1990), holding that where collateral act evidence would have been admissible against the principal in the first degree, it is also admissible against and aider and abettor.

State of West Virginia v. Cyrus Jonathan George, No. 19648 (W. Va. July 11, 1991) (Workman, J.): 185 W.Va. 539, 408 S.E.2d 291:

Where defendant allegedly shot the victim once, but was convicted both of malicious assault and attempted murder, the Court affirmed, holding that, inter alia, because malicious assault requires proof of bodily injury, while attempted murder does not, and because attempted murder requires proof of premeditation, while malicious assault does not, the double jeopardy clause does not prohibit, under the Blockburger test, malicious assault and attempted murder convictions for the same act.

State v. Rubin (Skeeter) Julius, No. 19836 (W. Va. July 3, 1991) (Miller, C.J.): 185 W.Va. 422, 408 S.E.2d 1:

Where the defendant's clothing was seized at the time of his booking, the Court affirmed its admissibility, holding that searches and seizures that could be made at the time of arrest may be conducted later when the accused arrives at the place of detention. Where defendant's jacket, described by an eyewitness, was seized from a chair in his home, the Court affirmed its admissibility, discarding the "inadvertent discovery" requirement of State v. Moore, 165 W. Va. 837, 272 S.E.2d 814 (1980) and State v. Stone, 165 W. Va. 266, 268 S.E.2d 50 (1980), and holding that the factors supporting a plain view warrantless seizure are (1) no fourth amendment violation by the officer in occupying the location from which incriminating evidence could be observed; (2) presence of the evidence in plain view with an immediately apparent incriminating character; and (3) a lawful right of access by the officer to the evidence. The Court also rejected sixth amendment challenges to the seizure of this evidence, holding that physical evidence lawfully seized from a defendant who has been lawfully arrested, even after exercise of his right to counsel, does not render such evidence inadmissible under the sixth amendment. On another issue, the Court rejected the defendant's challenge to a conviction of malicious assault of an individual whom he contended he was unaware occupied a building which he set afire, holding that under the doctrine of transferred intent, when a person intends to harm another, but in the course of attempting such harm, accidently harms another person, the person's intent will be transferred to the third party.

State of West Virginia v. Edward H. Young, No. 19647 (W. Va. June 28, 1991) (McHugh, J.): 185 W.Va. 327, 406 S.E.2d 758:

In a dentist's appeal of multiple convictions of unlawfully prescribing various controlled substances, the Court held (1) the elements of the offense of felonious constructive delivery of a controlled substance by a purported prescription issued by a registered physician, dentists, or other practitioner, are (a) constructive delivery of a controlled substance requiring a valid prescription by the issuance of a purported prescription on behalf of a purported patient who received the controlled substance from a pharmacist who filled such prescription and (b) issuance of the prescription intentionally and knowingly outside the usual course of professional practice or research; (2) an indictment of the offense of felonious constructive delivery of a controlled substance by a purported prescription issued by a registered physician, dentist, or other practitioner, must charge that the prescription was issued without a legitimate medical, dental, or other authorize purpose; and (3) although the indictments in the instant case did not precisely follow the language of the statute, the Court held such indictments proper, stating that there is flexibility in the selection of the charging terms for the felonious prescribing of controlled substances.

State of West Virginia v. Larry Caskey and Sandra Caskey, No. 20018 (W. Va. June 27, 1991) (Brotherton, J.): 185 W.Va. 286, 406 S.E.2d 717:

Where the defendants sought probation following entry of pleas of guilty in magistrate court to misdemeanor charges of child neglect, the Court prescribed the following procedures: (1) a defendant may request probation for a misdemeanor plea or conviction by filing a petition in circuit court; (2) a copy of the petition must be served on the prosecution; (3) the prosecution must have an opportunity to respond to the petition; and (4) the circuit court may immediately grant probation, deny probation, or may direct a presentence investigation.

State of West Virginia v. Andrew G. Hlavacek, No. 19699 (W. Va. June 27, 1991) (Brotherton, J.): 185 W.Va. 371, 407 S.E.2d 375:

Where a defendant, who did not appear to pose any threat to an officer's safety, was asked to empty his pockets, which produced three marijuana cigarettes and a pair of surgical scissors, the Court held that such "protective search" was unreasonable under the circumstances and violated the defendant's four amendment rights. Moreover, because the affidavit for a subsequent search warrant of the defendant's vehicle, which produced one pound of marijuana, relied solely upon the fruits of this unlawful search and information supplied by an unidentified confidential informant, the Court found such subsequent search illegal, holding that when information provided by a confidential informant is used in an affidavit for a search warrant, the affidavit must also contain information which sufficiently establishes the basis of the informant's knowledge and lends credibility to the informant's statements. Finally, while the Court recognized that independent police work may corroborate information contained in an affidavit for a search warrant, it held that such investigation must uncover details that are significant and specific in strengthening the confidential informant's credibility.

State of West Virginia v. Jeffrey A. Ward, No. 19704 (W. Va. May 9, 1991) (Brotherton, J.): 185 W.Va. 361, 407 S.E.2d 365:

Rejecting a challenge to sentencing which occurred almost three years after the defendant was convicted, the Court restated its holding in the single syllabus of Ball v. White, 170 W.Va. 417, 294 S.E.2d 270 (1982), that, in order to constitute a violation of the defendant's right to due process, delay in sentencing must be purposeful, oppressive, or otherwise prejudicial. Further rejecting a challenge to a four-month jail sentence as a condition to the two years' probation received by the defendant when his sentence of 1-10 years for daytime burglary was imposed, the Court held that, as a condition of probation, a court may require, under W. Va. Code § 62-12-9(4), that a probationer "serve a period of confinement in the county jail . . . not to exceed one third of the minimum sentence established by law . . . , but in no case shall such period of confinement exceed six consecutive months."

State of West Virginia ex rel. William C. Forbes, Prosecuting Attorney for Kanawha County v. Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, and Willie "Doc" Williams, No. 19855 (W. Va. April 25, 1991) (McHugh, J.): 185 W.Va. 72, 404 S.E.2d 763:

Affirming a trial court's decision to accept a guilty plea, but to impose a sentence different from that in plea agreement, the Court held that (1) when the state agrees to make a sentencing recommendation and enters into a plea agreement with the defendant pursuant to Rule 11(e) (1) (B) of the Rules of Criminal Procedure, the trial court is not bound to impose the sentence recommended by the state; (2) when the state agrees that a specific sentence is a suitable disposition and enters into a plea agreement pursuant to Rule 11(e) (1) (C) of the Rules of Criminal Procedure, the trial court may accept or reject the agreement, but may not accept the guilty plea and impose a different sentence; and, (3) when it is not clear whether the plea agreement has been entered into pursuant to Rule 11(e) (1) (B) or Rule 11(e) (1) (C) of the Rules of Criminal Procedure, the trial court may sentence the defendant without being bound by the sentencing provision in the plea agreement.

State of West Virginia ex rel. Benjamin Roach v. Jerry Dietrick, Superintendent, Eastern Regional Jail, No. 20005 (W. Va. April 17, 1991) (Miller, C.J.): 185 W.Va. 23, 404 S.E.2d 415:

Where the prosecution sought to set aside a guilty plea after the defendant was released pursuant to the department of corrections' calculation of good time credit, the Court ordered the defendant's discharge from further prosecution, holding that a person who has been incarcerated in jail awaiting sentencing, and who is credited with presentence jail time under W. Va. Code § 61-11-24, is also entitled to receive good time credit under W. Va. Code § 28-5-27(c) for the presentence jail time.

Kathy Jo Schofield v. West Virginia Department of Corrections, No. 19708 (W. Va. March 15, 1991) (Neely, J.): 185 W.Va. 199, 406 S.E.2d 425:

Where trial counsel knew that defendant's direction to seek either an acquittal or a manslaughter conviction was virtually impossible to achieve, knew that defendant's mental ability was limited, and knew of the defendant's history of social, emotional, and family problems, which could have been introduced in mitigation of punishment without inviting overwhelming counter-evidence, the Court affirmed the trial court's finding that trial counsel was unconstitutionally ineffective, affirming its standard of review set forth in Syllabus Point 19 of State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1975).

State of West Virginia ex rel. Darrell Gene Knotts and Rosalee Juba-Plumley, Special Prosecuting Attorney for the 29th Judicial Circuit v. Honorable Clarence L. Watt, III, Judge of the 29th Judicial Circuit, No. 20207 (W. Va. December 19, 1991) (Miller, C.J.): 186 W.Va. 518, 413 S.E.2d 173:

Rejecting a request to dismiss an indictment based upon a conflict of interest by an assistant prosecutor at the time of the indictment who took no part in the prosecution, the Court held (1) where the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, any resulting indictment should be dismissed; (2) where the structural protections of the grand jury have not been so compromised as to render the proceedings fundamentally unfair, dismissal of any resulting indictment is appropriate only where the violation substantially influenced the decision to indict or there is grave doubt about the independence from taint of the grand jury's decision to indict; and (3) where a disqualified assistant prosecutor did not participate in the investigation or presentment of a case to the grand jury, and did not influence procurement of the indictment, a dismissal is not mandated merely because the assistant prosecutor was disqualified from participating.

State of West Virginia v. Stephen W. Hatfield, No. 19987 (W. Va. December 19, 1991) (McHugh, J.): 186 W.Va. 507, 413 S.E.2d 162:

Where defendant, who had attempted suicide following his arrest and was examined for mental disturbance, entered a guilty plea to first-degree murder without mercy, despite protests from his attorneys, the Court remanded, holding that where a defendant attempts suicide following a determination of mental competency, then, without further examination, tenders a plea of guilty against the advice of counsel to a charge of first degree murder, the trial court should inquire into the customary areas, as well as require (1) counsel to state on the record why counsel opposes the plea; (2) the defendant to acknowledge on the record that he or she understands counsel's statements; and (3) that despite this understanding, the defendant still desires to enter a plea of guilty.

State of West Virginia v. Stewart Martin Elliott, No. 20128 (W. Va. December 13, 1991) (Workman, J.): 186 W.Va. 361, 412 S.E.2d 762:

Where defendant killed mother, raped her daughter, and stole items from their residence, the Court clarifying its holding in State v. Williams, 172 W. Va. 295, 305 S.E.2d 251 (1983), held that where there is more than one underlying felony supporting a felony murder conviction, and one of the underlying felonies is committed upon a separate victim from the murder victim, that felony does not merge with the felony murder conviction for purposes of double jeopardy.

State of West Virginia ex rel. Department of Transportation, et al. v. Honorable A. L. Sommerville, Jr., Judge of the Circuit Court of Webster County; Thomas Arthur Grimes; and Melvin Cox, No. 20324 (W. Va. December 12, 1991) (McHugh, J.): 186 W.Va. 271, 412 S.E.2d 269

Reversing a circuit court injunction prohibiting authorities from weighing suspected overweight vehicles if the driver refuses to submit the vehicle to weighing, the Court held that (1) where a statute is both remedial and penal, its remedial provisions should be liberally construed to achieve the purposes of the statute and its penal provisions should be strictly construed to enforce the penalties provided, and (2) W. Va. Code § 17C-17-10(a) permits authorities to "require the driver of any vehicle . . . to stop and submit such vehicle . . . to a weighing," even where the driver refuses to comply with W. Va. Code § 17C-17-10, and is subject to a separate criminal penalty.

State of West Virginia v. Mary M. Burd, No. 20001 (W. Va. December 11, 1991) (Workman, J.): 187 W.Va. 415, 419 S.E.2d 676:

Affirming the defendant's convictions of conspiracy to commit murder and attempted murder of her lover's wife and son arising from (1) payment of $150 to her co-conspirator for the purchase of a gun to commit the murder; (2) tender to her co-conspirator of a map to the victims' home, a physical description of both victims, a sketch of the interior of the home, and an envelope containing a suicide note; (3) discussion with her co-conspirator of his travel arrangements, the method of gaining entry into the home, the manner in which the murder should occur, and the appearance of the crime scene; and (4) payment of $500 to her co-conspirator as a down payment, the Court held that where formation of criminal intent is accompanied by preparation to commit the crime of murder and a direct overt and substantial act toward its perpetration, the requirements for the crime of attempted murder have been met.

State of West Virginia v. Larry Eldon James, No. 19938 (W. Va. November 20, 1991) (Neely, J.): 186 W.Va. 173, 411 S.E.2d 692:

Rejecting a Brady challenge to the prosecution's alleged failure to disclose that his co-defendant was receiving probation in exchange for his testimony and that, despite his statements to the probation department to the contrary, he was AWOL from the Navy, the Court held that although the prosecution must disclose all inducements given to witnesses in exchange for their testimony at a criminal defendant's trial, the defendant in the instant case had not sufficiently developed the evidence on the alleged inducement, but was invited to institute habeas corpus proceedings to develop such record, and that the evidence regarding the co-defendant's misrepresentations about his military status was unrelated to any claim of witness bias or interest.

State of West Virginia v. Melissa Walters, No. 20110 (W. Va. November 18, 1991) (McHugh, J.): 186 W.Va. 169, 411 S.E.2d 688:

Rejecting the prosecution's appeal from the dismissal of misdemeanor battery complaints, the Court held that W. Va. Code § 58-5-30 does not authorize an appeal by the State from the dismissal of a criminal complaint initially filed in magistrate court.

State of West Virginia ex rel. James F. Painter v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, No. 20203 (W. Va. October 31, 1991) (Brotherton, J.): 186 W.Va. 82, 411 S.E.2d 25:

Where co-conspirator committed suicide during police chase, the Court held that other co-conspirators could not be charged with felony-murder if the only death which occurred during the commission of the underlying felony was the suicide of a co-conspirator in the criminal enterprise.

State of West Virginia ex rel. O.C. Spaulding, Prosecuting Attorney for Putnam County v. Honorable Clarence L. Watt, Judge of the Circuit Court of Putnam County, and Michael B. Pauley, No. 20384 (W. Va. October 17, 1991) (Miller, C.J.): 186 W.Va. 125, 411 S.E.2d 450:

Reversing a trial court order for a witness to submit to deposition by a criminal defendant, the Court held that even though a potential witness in a criminal proceeding is unwilling to talk to an attorney or an investigator for a defendant, W. Va. R. Crim. P. 15 authorizes a court to order a deposition only when it is necessary to preserve the testimony of a witness who will be unavailable for trial.

State of West Virginia v. James William Smith, No. 19958 (W. Va. October 16, 1991) (Neely, J.): 186 W.Va. 33, 410 S.E.2d 269:

Reversing a second-degree murder conviction based, in part, on a confession obtained after a seven-hour interrogation at the conclusion of which the defendant was taken to the emergency room of a local hospital where he was treated for cuts, bruises, and a ruptured eardrum, the Court held that although confessions that are legally involuntary may be used for the limited purpose of impeachment, confessions that are factually involuntary may not be used for any purpose. Similarly, with respect to an article of clothing seized with the "consent" of the defendant after the seven-hour "interrogation," the Court held that consent to a search or seizure that is factually involuntary is invalid.

State of West Virginia v. Gary Wayne Miller, No. 19593 (W. Va. December 19, 1990) (McHugh, J.): 184 W.Va. 367, 400 S.E.2d 611:

Reversing convictions of grand larceny, forgery and uttering, the Court held that the failure of a trial court to instruct the jury on all essential elements of the offenses charged deprives the accused of his fundamental right to a fair trial, and constitutes reversible error.

State of West Virginia v. John Allen Whitt, No. 19544 (W. Va. December 14, 1990) (Miller, J.): 184 W.Va. 340, 400 S.E.2d 584:

Rejecting a challenge to the admissibility of a recording of a telephone conversation between the defendant and a citizen who was cooperating with police, the Court held that 18 U.S.C. § 2511 (2) (c) permits the admission of evidence derived from intercepted wire or oral communications where the interceptor is acting under color of law and is a party to the communication or where the interceptor is acting under color of law and one of the parties to the communication has given prior consent. Moreover, the Court held that if there is an allegation consent was coerced, the State must show there were no undue pressure, threats or promises.

State of West Virginia ex rel. Fredtricia Natalie Johnson v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County; and William C. Forbes, Prosecuting Attorney of Kanawha County, No. 19827 (W. Va Deember 14, 1990) (Miller, J.): 184 W.Va. 346, 400 S.E.2d 590:

Prohibiting the prosecution of a defendant who was indicted more than one year after misdemeanor charges were dismissed by the prosecution, the Court held that where a misdemeanor warrant in magistrate court is dismissed, further prosecution for the same offense after one year has passed since execution of the original warrant is precluded unless the record shows one or more of the exceptions contained in W. Va. Code § 61-3-21.

State of West Virginia v. James Edward S., No. 19577 (W. Va. December 12, 1990) (Miller, J.): 184 W.Va. 408, 399 S.E.2d 42:

Reversing an incest conviction obtained, in part, through the testimony of a social worker regarding extrajudicial statements made by the defendant's daughter, who did not appear at trial, the Court held such testimony will not be held violative of the Confrontation Clause only if the prosecution affirmatively demonstrates that (1) substantial diligence was expended to obtain the witness's attendance, and (2) the testimony bears adequate indicia of reliability, such as where the evidence falls within a hearsay exception. Moreover, the Court held that the Confrontation Clause precludes residual hearsay testimony under R. Evid. 803(24) and 804(b) (5) unless there is a specific showing, apart from any corroborating evidence, of particularized guarantees of trustworthiness. Although not held reversible under the circumstances presented, the Court held that where a party seeks to introduce a prior inconsistent statement indicating witness bias, which might lead the witness to slant, unconsciously or otherwise, testimony in favor of or against a party, three factors must be present: (1) the statement must be a prior inconsistent statement of the witness, (2) the witness must be given an opportunity to explain or deny having made the statement, and (3) the opposing party must be afforded an opportunity to interrogate the witness concerning the statement.

State of West Virginia v. Raymond Housden, No. 19644 (W. Va. November 29, 1990) (Workman, J.): 184 W.Va. 171, 399 S.E.2d 882:

Rejecting a challenge to a sentence imposing consecutive life recidivist and 1-10 year sentences, the Court held that for multiple convictions rendered on the same day, sentences may be imposed which run consecutively, even though one of those convictions is subject to enhancement under W. Va. Code § 61-11-19.

State of West Virginia v. Brigitte Wickline, No. 19494 (W. Va. October 24, 1990) (Miller, J.): 184 W.Va. 12, 399 S.E.2d 42:

Affirming a conviction of first-degree murder, the Court held that where evidence demonstrated that any delay in presenting the defendant to a magistrate was not for the purpose of obtaining her confession, but rather was for routine processing of the crime scene and suspect, failure to suppress a confession voluntarily given upon the defendant's arrival at the police station did not constitute error. On an unrelated issue, the Court held that despite its belief that the defendant's assertion of ineffective assistance of counsel might have some merit, the record on appeal was inadequate to resolve the claim, which it suggested should be developed by writ of habeas corpus.

State of West Virginia v. Michael Perolis, No. 19607 (W. Va. October 18, 1990) (Neely, C.J.): 183 W.Va. 686, 398 S.E.2d 512:

Where defense counsel was precluded from asking leading questions of the prosecutrix in a sexual assault case regarding handwritten notes tending to impeach her direct testimony that she had not returned to the defendant's home following the assault, the Court reversed, holding that when a party calls a hostile witness, an adverse witness, or a witness identified with an adverse party, interrogation may be conducted by leading questions.

Robert Craigo v. Carl Legursky, Warden, West Virginia Penitentiary, No. 19728 (W. Va. October 4, 1990) (Workman, J.): 183 W.Va. 678, 398 S.E.2d 160:

Rejecting a prisoner's challenge to a charge of escape following his departure from work release without permission, the Court held that because a convict who is transferred to work release remains in the custody of the department of corrections, such convict is guilty of felony escape if he or she leaves without permission.

State of West Virginia v. Edward Charles L., No. 19004 (W. Va. July 27, 1990) (Workman, J.): 183 W.Va. 641, 398 S.E.2d 123:

Overruling State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986), in affirming sexual assault and sexual abuse convictions based, in part, on evidence, unrelated to the specific crimes charged, that the defendant (1) fondled his infant son through a diaper, (2) engaged in phone sex in the presence of his children, (3) deposited ejaculate into a bag of his daughter's underwear, (4) touched his groin area through his trousers, (5) masturbated following sex with his wife, (6) leaned against the washing machine during its spin cycle, (7) copulated with the family dog, (8) removed his vasectomy stitches during masturbation, and (9) stimulated himself rectally in the presence of his son as he looked at Hustler magazine, holding that when a defendant is charged with "child sexual assault or sexual abuse," collateral acts or crimes may be introduced to show "the perpetrator" had a "lustful disposition" toward the victim, other children, or children generally, provided such evidence relates to incidents reasonably close in time to the incident(s) giving rise to the indictment. Distinguishing Syl. pt. 3 of State v. Murray, 180 W.Va. 41, 375 S.E.2d 405 (1988), in which the Court had held that, "[o]ut-of-court statements made by the victim of a sexual assault may not be introduced by a third party unless the statements qualify as an excited utterance," in affirming the admission of hearsay testimony regarding statements made by the alleged victims to their psychologist four years after the incidents described, the Court held that if a declarant's motive in making a hearsay statement is consistent with the purposes of promoting treatment and its content is such as is reasonably relied upon by a physician in treatment of diagnosis, such hearsay statement is admissible. The Court further extended this rule to affirm the trial court's admission of a similar hearsay statement by the alleged victims' mother on the theory that they were primarily offered to explain why she sought psychological treatment for the victim. Finally, distinguishing State v. McCoy, 179 W.Va. 223, 366 S.E.2d 731 (1988), in which the Court had held that an expert may "not give an opinion, expressly or implicitly, as to whether or not the alleged victim was raped," in affirming the trial court's admission of testimony by the psychologist that, "[I]t's my opinion that [the victims were] sexually abused," the Court held that in cases of "child sexual abuse" an expert may state an opinion based on "objective findings" as to whether the child comports with the psychological and behavioral profile of a child sexual abuse victim.

State of West Virginia v. Charles Ray Merritt, No. 19489 and Charles Ray Merritt v. Carl Legursky, Warden, West Virginia Penitentiary, No. 19488 (W. Va. July 26, 1990) (Workman, J.): 183 W.Va. 601, 396 S.E.2d 871:

Despite an eight-year delay in the perfection of an appeal, the Court held that notwithstanding the length of any delay, once a defendant's appeal has been adjudicated on the merits, the defendant is not entitled to habeas corpus relief.

State of West Virginia v. John W. Schoolcraft, No. 19303 (W. Va. July 25, 1990) (Brotherton, J.): 183 W.Va. 579, 396 S.E.2d 760:

Where the defendant was convicted of two separate counts that had been severed prior to trial, the Court reversed, holding that although an indictment may charge more than one offense, a defendant may be convicted only of those charges that are prosecuted at trial. Where the trial court had rejected a defense request to introduce for purposes of impeachment a videotaped interview after the alleged sexual assault victim stated she could not recall the interview, the Court reversed, holding that where a witness cannot recall a prior statement or denies making it, the statement may be introduced for purposes of impeachment.

State of West Virginia v. Betty Jean Kelly, No. 19368 (W. Va. July 25, 1990) (Miller, J.): 183 W.Va. 509, 396 S.E.2d 471:

Rejecting a wife's forgery defense that her husband had authorized her to sign his name, the Court held that in order to sustain a conviction for forgery, the State must prove that: (1) the accused falsely made or altered a writing; (2) the accused did so with intent to defraud; and, (3) the writing so created or altered is of such a nature that if it were genuine it could prejudice the legal rights of another. The Court further held that it is not necessary to show actual prejudice to the rights of another to sustain a forgery conviction as long as there was intent to defraud and potential prejudice to the rights of another. Finally, the Court held that subsequent ratification of a forgery will not excuse the crime.

State of West Virginia v. Paul William Ferrell, No. 19401 (W. Va. July 24, 1990) (Neely, C.J.): 184 W.Va. 123, 399 S.E.2d 834:

In affirming convictions of kidnapping, second-degree murder, and third-degree arson based upon circumstantial evidence, including the fact that the defendant had telephoned bookstores and libraries throughout the country posing as a physician seeking information on anal sex, the Court held: (1) evidence of these phone calls was admissible to show a motive for these crimes, i.e., obtaining sexual gratification, as well as to prove the kidnapping charge; (2) expert evidence that the defendant's body language constituted an admission of guilt was harmless in light of other evidence properly admitted; and, (3) reference in the trial court's instruction to the "guilt or innocence of the accused" was not reversible in light of other instructions on the State's obligation to prove the defendant's guilt beyond a reasonable doubt.

State of West Virginia v. Thomas Eugene Sayre, No. 19214 (W. Va. July 24, 1990) (Brotherton, J.): 183 W.Va. 376, 395 S.E.2d 799:

Rejecting a double jeopardy challenge to second and third-degree sexual assault convictions arising from a single act of intercourse between a 25 year old male and 15 year old female, the Court held that because consent, which is irrelevant to a charge of third-degree sexual assault, is a necessary element of the crime of second-degree sexual assault, the convictions passed the Blockburger test.

State of West Virginia ex rel. Eugene Blake v. Honorable Robert G. Chafin, Judge of the Circuit Court of Wyoming Co., No. 19362 (W. Va. July 11, 1990) (Workman, J.): 183 W.Va. 269, 395 S.E.2d 513:

Reversing a trial court's rejection of a prisoner's habeas corpus petition on the ground that it attacked only one of two concurrent life sentences, the Court held that even where habeas corpus review of a conviction will not alter the circumstances of a prisoner's confinement, a trial court must still render a ruling on the merits and may not summarily dismiss.

State of West Virginia ex rel. Ricky Starr, Michael Bryant, Bobby Chafin, Tim Preece, Albert Rush Cline and Mike Holbrook v. Honorable Robert C. Halbritter, Duly Appointed and Acting Special Judge of the Circuit Court of Logan County, West Virginia, and Donald C. Wandling, Prosecuting Attorney of Logan County, West Virginia, No. 19649 (W. Va. June 28, 1990) (McHugh, J.): 183 W.Va. 350, 395 S.E.2d 773:

Invalidating indictments prepared following the grand jury's vote and which were seen only by their foreperson, the Court held that the failure of a grand jury to vote as a body upon the text of an indictment is a fundamental error so compromising the integrity of the process as to constitute prejudice per se, and any indictment so obtained must be dismissed as void, without prejudice to the right of the State to later seek a valid indictment.

State of West Virginia v. Jesse Braden King, No. 18391 (W. Va. June 28, 1990) (McHugh, J.): 183 W.Va. 440, 396 S.E.2d 402:

Where prosecution impeached testimony of defendant's daughter with videotape of an investigatory interview in which the daughter alleged that her father had engaged in sexual intercourse with her and two sisters, which allegations the daughter contended were the product of duress and coercion by the investigating officer, the Court held that a videotaped interview containing a prior inconsistent statement can be introduced if (1) the contents of the videotape are sufficient for the jury to decide whether the witness was under duress or coerce when making the prior inconsistent statement; (2) a limiting instruction is given that such evidence is to be considered only for the purpose of determining credibility, not as substantive evidence; and, (3) its probative value outweighs its prejudicial effect. Even though defendant's daughter admitted making a prior inconsistent statement, the Court held that the admission of such videotape impeachment evidence was proper.

E.B., Jr., V.E.B., and M.D.H., all juveniles under the age of eighteen years v. Honorable Thomas B. Canterbury and the Honorable John C. Ashworth, Judges of the Tenth Judicial Circuit, and Lawrence R. Frail, Prosecuting Attorney of Raleigh County, No. 19565 (W. Va. June 26, 1990) (Workman, J.): 183 W.Va. 197, 394 S.E.2d 892:

Under W. Va. Code § 49-5-1 to -18, the Court held that until a juvenile is transferred to adult jurisdiction, a grand jury has no authority to return a true bill of indictment against such juvenile.

State of West Virginia v. Arthur Dale Collins, No. 18795 (W. Va. June 22, 1990) (Miller, J.): 186 W.Va. 1, 409 S.E.2d 181:

Where prosecution knew one of its witnesses had recanted a prior statement to police that the defendant had admitted killing the victim and another of its witnesses had recanted a prior statement that the defendant had told their mother that he had severed a romantic relationship with the victim prior to her death, the Court held that a prior statement of a witness, even if given under oath during the course of a police interrogation, is not a statement made subject to the penalty of perjury or during a trial, hearing, or other proceeding as required by Rule 801(d) (1) (A) of the Rules of Evidence. Moreover, rejecting the State's claim that such statement was admissible as impeachment evidence under R. Evid. 607, the Court held that otherwise inadmissible evidence may not be introduced under the guise of impeachment if, under R. Evid. 403, the impeachment value of such evidence is outweighed by its prejudicial effect. Finally, the Court held that even in those cases where impeachment value outweighs prejudicial effect, failure of the trial court to give a cautionary instruction that such evidence cannot be considered as substantive constitutes plain error.

William C. Duncil, Warden v. Hon. Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, and Judson Warren White, No. 19360 (W. Va. June 12, 1990) (Miller, J.): 183 W.Va. 175, 394 S.E.2d 870:

In prohibiting enforcement of an order by a circuit judge which invalidated a guilty plea and sentenced the defendant to time served, the Court held (1) a defendant has no absolute right to withdraw a guilty plea before sentencing, and a trial court's decision to permit withdrawal will be disturbed only for abuse of discretion; (2) where a defendant seeks to withdraw a guilty plea before sentencing, claiming innocence, a trial court should consider the length of time between entry of the plea and filing of the withdrawal motion, the reason withdrawal was not presented at an earlier point in the proceedings, whether the defendant maintained his innocence through the proceedings, whether the prosecution will suffer prejudice, and whether the defendant has articulated some ground in support of his claim of innocence; (3) although it is improper to enhance a sentence based on a prior invalid conviction, before such sentence will be vacated, the defendant must show the prior conviction was unconstitutional, the sentencing judge mistakenly believed it was valid, and the prior conviction was used to enhance the challenged sentence.

State of West Virginia v. John B. Kerns, No. 19247 (W. Va. June 8, 1990) (McHugh, J.): 183 W.Va. 130, 394 S.E.2d 532:

Reversing a trial court decision that it lacked jurisdiction to consider work release or home confinement for a person convicted in magistrate court of second-offense DUI, the Court held that interpretation of the relevant statutes to permit a circuit court to order work release or home confinement in lieu of incarceration imposed by a magistrate court in a misdemeanor case was consistent with the purposes of the statutes that permit those alternative sentences.

State of West Virginia v. Elbert Wayne Giles, Jr., No. 19048 (W. Va. June 7, 1990) (Brotherton, J.): 183 W.Va. 237, 395 S.E.2d 481:

Where juvenile suspect was transported by officer to police headquarters without sufficient probable cause, was not taken before a judicial officer in a timely manner, and was extensively interrogated in an accusatory fashion, the Court determined that he had been "taken into custody," under W. Va. Code § 49-5-8(d), and should have been afforded a "written statement explaining [his] right to a prompt detention hearing, his right to counsel including appointed counsel if he cannot afford counsel and his privilege against self-incrimination," and that two inculpatory statements which were the product of the interrogation should have been suppressed. On another issue, the Court held that if a murder case is prosecuted under both felony-murder and first-degree murder theories, jury instructions must be given to distinguish between these two theories and verdict forms must be provided so that it can be determined under which theory the conviction is based.

State of West Virginia, ex rel. William C. Forbes, Prosecuting Attorney for Kanawha County v. The Honorable Patsy McGraw, Magistrate, Kanawha County Magistrate Court, No. 19550 (W. Va. June 4, 1990) (Workman, J): 183 W.Va. 144, 394 S.E.2d 743:

Where defendants were incarcerated pursuant to trespassing complaints containing wrong statutory citation, the Court held that as long as defendants were incarcerated pursuant to other valid complaints which charged offenses for which incarceration was a possible penalty, no prejudice could be claimed, and erroneous citation was not ground for dismissal with prejudice. On another issue, the Court upheld the dismissal of obstruction charges with prejudice due to the prosecution's refusal to present its case because its motion to amend the trespassing complaints was denied.

Irvin Hutchinson v. Jerry Dietrich, Administrator, Eastern Regional Jail, and Honorable Thomas W. Steptoe, Jr., Judge of the Circuit Court of Morgan County, No. 19483 (W. Va. May 17, 1990) (Brotherton, J.): 183 W.Va. 25, 393 S.E.2d 663:

Rejecting defendant's claim that he was entitled to mandatory probation on a charge of delivery of less than 15 grams of marijuana without remuneration, the Court held that such mandatory probation is not available to individuals who are contemporaneously convicted of other drug offenses. Accepting defendant's claim that the trial court improperly enhanced both his marijuana and cocaine sentences using a prior grand larceny conviction, the Court held that convictions rendered on the same day should be treated as a single conviction for purposes of the habitual criminal statute, and only one of such multiple convictions may be enhanced.

State of West Virginia v. Terry Lee Ruggles, No. 19105 (W. Va. May 17, 1990) (Brotherton, J.): 183 W.Va. 58, 394 S.E.2d 42:

Where prosecution offered forensic pathologist who testified regarding trajectory of bullet using a live model to rebut the defendant's claim that gun accidently discharged as the victim was attempting to prevent defendant's suicide, the Court held use of a model to demonstrate an expert's testimony is permissible, provided demonstration is (1) performed circumspectly; (2) not overly gruesome; (3) within the witness's field of expertise; and, (4) assistive to the jury in understanding complicated or confusing testimony.

State of West Virginia v. John R. Maynard, No. 19135 (W. Va. March 30, 1990) (Workman, J.): 183 W.Va. 1, 393 S.E.2d 221:

In an appeal of an aggravated robbery conviction, the Court held that although testimony regarding an anonymous telephone call to the police implicating the defendant was possibly hearsay because, though not admitted for proof of the matter asserted, it was not relevant to the prosecution or the defense, the introduction of other evidence of guilt rendered harmless the admission of such hearsay.

State of West Virginia v. Phillip Porter, No. 18874 (W. Va. March 22, 1990) (McHugh, J.): 182 W.Va. 776, 392 S.E.2d 216:

Where the defendant, who was acquitted of the murder of one of two victims who were killed by the same perpetrator at the same time and place, but was later tried and convicted of the murder of the other victim, the Court held that, under Ashe v. Swenson, 397 U.S. 436 (1970), the principle of collateral estoppel, which precludes relitigation of an issue of ultimate fact that has been formerly determined by a valid and final judgment, might render the defendant's conviction constitutionally defective under the double jeopardy clause, but that remand was necessary for the circuit court to compare the evidence presented in the two trials.

State of West Virginia v. Ronald Eugene Daniel, No. 19301 (W. Va. March 9, 1990) (Brotherton, J.): 182 W.Va. 643, 391 S.E.2d 90:

Where the defendant was convicted of first degree murder and malicious wounding after randomly firing in a van in which he was traveling, which he contended was done in self-defense, the Court held: (1) it was not error for the trial court to refuse to declare a mistrial when one of the defendant's witnesses attempted to bribe a juror, even though the juror failed to report such attempt until after the conclusion of the trial; (2) it was not error for the trial court to give the Ferguson instruction that malice can be inferred from the intentional use of a deadly weapon; and, (3) it was not error for the trial court to include the word "credible" in an instruction regarding the defendant's burden of persuasion on the affirmative defense of accident.

Frank Billotti v. A.V. Dodrill, Jr., Commissioner of the West Virginia Department of Corrections, and Jerry C. Hedrick, Warden, No. 18534 (W. Va. March 9, 1990) (Brotherton, J.): 183 W.Va. 48, 394 S.E.2d 32:

Although the Court noted criminal defendants have a constitutional right to petition for appeal, including a free transcript and effective assistance of appointed counsel, it held that, even for those sentenced to terms of life imprisonment without possibility of parole, there is no constitutional right to full appellate review. Further, the Court restated its holding that only trial errors involving constitutional violations are subject to review upon a writ of habeas corpus. Finally, the Court restated its holding that an instruction outlining factors to consider for determining whether to grant mercy in a first degree murder case should not be given.

State of West Virginia v. Karl Dietz, No. 18909 (W. Va. March 8, 1990) (on rehearing) (McHugh, J.): 182 W.Va. 544, 390 S.E.2d 15:

Where testimony regarding sexual aspect of homicide was elicited by both the defendant and the prosecution, arising from the discovery of an earring in the victim's vagina, the Court held that where a defendant's witness raises a material issue on direct and testifies adversely to the prosecution upon cross-examination, it is proper to allow the prosecution to present rebuttal evidence. Where medical examiner, who was neither a psychiatrist nor a psychologist, presented rebuttal evidence to the effect that the homicide in question was "psychosexual," the Court held such testimony admissible if based upon such examiner's (1) post mortem examination or review of the report; (2) knowledge of the characteristics of psychosexual homicide; and, (3) experience in post mortem examinations upon similar victims. Although trial court excluded proffered evidence of victim's violent past, the Court held that such testimony may be excluded if the defendant had no prior knowledge of such violent history. Despite trial court's inference during voir dire that defendant would testify, when defendant alleged such decision had not been reached, the Court rejected assignment of error, restating that the conduct of voir dire rests in the sound discretion of the trial court. Finally, the Court determined that no reversible error was committed when the trial court permitted tape recording and transcript of confession to be taken into the jury room during deliberations.

State ex rel. Jim Webb v. Honorable Ronald E. Wilson, Special Judge of the Circuit Court of Mingo County, and Donald J. Tennant, Jr., Special Prosecuting Attorney of Mingo County, No. 19276 and State ex rel. Hugh Wellman v. Honorable Ronald E. Wilson, Special Judge of the Circuit Court of Mingo County, and Donald J. Tennant, Jr., Special Prosecuting Attorney of Mingo County, No. 19279 (W. Va. February 15, 1990) (McHugh, J.): 182 W.Va. 538, 390 S.E.2d 9:

Because the initial indictments were dismissed as void after expiration of three unexcused regular terms of court, the Court held that, under the three-term rule of W. Va. Code § 62-3-21, the defendants were "forever discharged" and could not be prosecuted on the charges contained in the indictments.

State of West Virginia v. Steve Adkins, No. 19255; State of West Virginia v. Goodwill Motors, Inc., a corporation, Jack Webb, Joey Kohari, and Hugh Wellman, No. 19256; State of West Virginia v. Irvin "K.O." Damron, No. 19257; State of West Virginia v. Samuel Kapourales, No. 19248; State of West Virginia v. Robert Simpkins, No. 19259; State of West Virginia v. Paul Sizemore, No. 19260; State of West Virginia v. R. Doyle Van Meter, II, No. 19261; and, State of West Virginia v. W. Thomas Ward, No. 19262 (W. Va. December 20, 1989) (Brotherton, C.J.): 182 W.Va. 442, 388 S.E.2d 316:

The Court rejected the State's attempt to appeal the dismissal of indictments under the three-term rule, holding that the right of the State to appeal in criminal cases is limited under W. Va. Code § 58-5-30 to the dismissal of indictments that are "bad or insufficient".

State of West Virginia v. John Spence, Jr., No. 18203 (W. Va. December 20, 1989) (Miller, J.): 182 W.Va. 472, 388 S.E.2d 498:

Although one of the investigating officers indicated to the aggravated robbery victim prior to a photographic array that he suspected the defendant was the perpetrator, the Court held that this did not render such array impermissibly suggestive because the victim did not know the defendant and his name was not linked to any photograph. On a related issue,the Court held admissible testimony by a police officer regarding photographic identifications because both the officer and the victim were available for cross-examination. Finally, the Court upheld a sixty-year sentence for aggravated robbery in light of defendant's prior robbery conviction, seventeen prior arrests, eleven prior convictions, and use of a weapon.

State of West Virginia v. Dewey C. Davis, No. 18871 (W. Va. December 20, 1989) (Miller, J.): 182 W.Va. 482, 388 S.E.2d 508:

Where the defendant's son committed a sexual assault in his father's mobile home, without his father's intervention despite pleas of assistance from the victim, while the defendant lay on the bed patting the victim's hand, the father's conviction of sexual assault was affirmed under State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989). Although investigating officer neglected to sign affidavit upon which issuance of search warrant was based, the Court upheld warrant's validity, holding that (1) the affiant was sufficiently identified in the affidavit; (2) the affiant was sworn before and known to the issuing magistrate; and, (3) the affiant attested that the affidavit facts were true.

State of West Virginia v. Cheryl L. Satterfield, No. 18657 (W. Va. December 14, 1989) (Neely, J.): 182 W.Va. 365, 387 S.E.2d 832:

In reversing a trial court's dismissal of a third-offense DUI indictment on the ground that the prosecution was bound by its initial charge of second-offense DUI, which was withdrawn by the prosecution after the defendant failed to plead guilty to such initial charge, the Court held that the prosecuting attorney is vested with discretion in the management of criminal prosecutions, and may, in the exercise of such discretion, decide which of several possible charges to bring against an accused.

State v. Winston C. Fortner, Jr., No. 18941 (W. Va. December 14, 1989) (Miller, J.): 182 W.Va. 345, 387 S.E.2d 812:

Although prosecution failed to disclose victim's statement that one of five attackers had no sexual contact with her and tried to offer moral support during gang rape, the Court held no Brady violation occurred because defendant had confessed to two acts of sexual intercourse with victim and evidence suggested that such statement referred to another individual. Where the defendant joined with others in shouting, "We want some pussy," "Don't hog it all," "I'm next," "Let us do something," and "It's my turn;" assisted in removing victim's clothing; ridiculed one of the attackers when he failed to attain an erection; and otherwise manifested a shared attitude of joviality, his conviction of aiding and abetting the acts of his fellow attackers was held proper, even where some of those acts occurred outside his presence. In this regard, the Court held (1) under the "concerted action" principle, a defendant who is present at the scene of a crime and, by acting with another, contributes to the criminal act, is criminally liable for such offense as if he were the sole perpetrator and, (2) for a defendant to successfully "withdraw" from a concerted criminal action, he must demonstrate that he communicated his disavowal of, disapproval of, opposition to the proposed conduct sufficiently in advance to give his confederates a reasonable opportunity to abandon their venture. Where defendant was convicted both of abduction, for the initial seizure of the victim, and kidnapping, for her removal to a remote location for purposes of sexual assault, the Court held that the crimes of abduction with intent to defile and kidnapping with intent to avoid arrest are separate offenses, and that the defendant's conviction therefor did not constitute a double jeopardy violation.

State of West Virginia v. Daney L. Marcum, No. 18651 (W. Va. October 19, 1989) (Neely, J.): 182 W.Va. 104, 386 S.E.2d 117:

In an appeal from a first-degree murder and arson conviction, the Court held that admission of accomplice's confession constituted a violation of the defendant's sixth amendment right to confrontation where the accomplice was unavailable for cross-examination and where the confession lacked sufficient independent "indicia of reliability" because (1) it was given under interrogation, not spontaneously; (2) it was not directly against penal interest, but rather attempted to shift blame for the murder toward the defendant; and, (3) although there was some evidence corroborating the defendant's involvement, the evidence tended to contradict the accomplice's claim that the accomplice was not involved in the murder.

DAMAGES

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

Reversing vacation of a $1.05 million punitive damages award and remanding for further proceedings, the Court held (1) the amount of a punitive damages award must be reviewed by both the trial and appellate courts in accordance with the requirements of Garnes and TXO; (2) punitive damages review pursuant to Garnes and TXO should not include the "really mean/really stupid" dichotomy mentioned in TXO; and (3) punitive damages review pursuant to Garnes and TXO follows a two-step process: (i) determining whether "any" award of punitive damages was warranted under the circumstances of the case and (ii) whether the "amount" of punitive damages awarded was warranted.

Danny Reed and Sonya Reed v. Kathy L. Wimmer, No. 22705 (W. Va. October 27, 1995) (Cleckley, J.): 195 W.Va. 199, 465 S.E.2d 199:

Reversing the future medical expenses portion of a jury award in the absence of any evidence regarding the necessity of such expenses, the Court held that before a verdict may be reversed as excessive, the trial court must make a detailed appraisal of the evidence on such damages, to which an appellate court should defer as long as the award is supported by some competent, credible evidence addressing all of the essential elements of the award.

Carol Sue Bullman v. D & R Lumber Company, No. 22729 (W. Va. October 27, 1995) (Cleckley, J.): 195 W.Va. 129, 464 S.E.2d 771:

Affirming an award of both treble and punitive damages in a wrongful removal of timber case, the Court held (1) the treble damage award available under W. Va. Code § 61-3-48a is to provide compensatory damages to landowners for damaged or removed timber and (2) because W. Va. Code § 61-3-48a states that treble damages shall be in addition to and notwithstanding any other penalties provided by law, a plaintiff may recover punitive damages in addition to such treble damages.

Sandra Bressler v. Mull's Grocery Mart, No. 22343 (W. Va. July 19, 1995) (Workman, J.): 194 W.Va. 618, 461 S.E.2d 124:

Reversing an additur of allegedly insufficient future medical expenses, but where the necessity of all such expenses was challenged on cross-examination of the plaintiff's expert, the Court held that an award of additur is appropriate only where the facts of the case demonstrate that the jury has made an error in calculating its award of damages and the failure to correct the amount awarded would result in a reduction of the jury's intended award.

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

Affirming a defense verdict in a medical malpractice case, the Court found that refusal to instruct on punitive damages was appropriate under the circumstances, holding that punitive damages instructions should be given only where there is evidence that the defendant acted wantonly, intentionally, or in reckless disregard to the rights of others or where the legislature has specifically authorized the recovery of punitive damages.

Mark Capper, Anita M. Lefevre, et al., dba Mauser Hall Partnership v. Fred Gates, dba Gates Associated, No. 21996 (W. Va. December 8, 1994) (Neely, J.): 193 W.Va. 9, 454 S.E.2d 54:

Affirming a $130,000 verdict, including an award of prejudgment interest on the compensatory damages portion, in a professional negligence case involving a land developer, the Court held that in a contract or tort action, prejudgment interest is available to a litigant as part of compensatory damages if there is an ascertainable pecuniary loss.

William E. Wehner, Jr., Administrator of the Estate of Jennifer Wehner; Nicole Fisher; and Jessica Landau v. Brett Barry Weinstein; Mark Weinstein; Associated Hearing Instruments of King of Prussia, Inc.; Bossio Enterprises, Inc., dba Mario's Pizza; Matthew Kiser; Sigma Phi Epsilon, a national fraternal organization and association; Sigma Phi Epsilon Building Association, Inc., a corporation; and the West Virginia University Board of Trustees, Nos. 21911, 21912, 21913, and 21914 (W. Va. April 20, 1994) (Miller, J.): 191 W.Va. 149, 444 S.E.2d 27:

Where defendants sought to reduce plaintiff's wrongful death award by the amount the decedent would have consumed over the course of her life, the Court held that W. Va. Code § 55-7-6(c)(1)(B)(i) allows as part of the elements of damages in a wrongful death case compensation for reasonably expected loss of income of the decedent and does not require that such amount be reduced for estimated personal consumption.

Carolyn Liston and Daley Liston v. The University of West Virginia Board of Trustees on Behalf of West Virginia University, No. 21546 (W. Va. December 13, 1993) (Miller, J.): 190 W.Va 410, 438 S.E.2d 590:

With respect to the manner of proof of lost earning capacity, the Court held that there must be expert testimony establishing (1) the permanency of the injury; (2) the injury's effect on the plaintiff's vocational skills; and (3) the monetary loss over the plaintiff's work-life expectancy reduced to present value.

Glenn M. Wilt and Sandra B. Wilt v. Robert Buracker, Sheriff as Successor in Interest to Roy E. Thompson, Administrator of the Estate of Charles W. Nickelson, Jr., No. 21708 (W. Va. December 13, 1993) (Miller, J.): 191 W.Va. 39, 443 S.E.2d 196:

In addition to holding that loss of enjoyment of life is not subject to economic calculation, the Court held that (1) prejudgment interest, pursuant to W. Va. Code § 56-6-31, may be awarded in damages for expenditures for household services, and (2) when liability is clearly established and the jury has made an erroneous calculation of damages, a remittitur may be directed on remand, but if the plaintiff declines to accept the remittitur, a new trial will be awarded solely on the issue of damages.

Ellen Roxanna Linville, Administratrix of the Estate of Jack K. Linville v. John W. Moss, III, and Guest Trucking Company, Inc., No. 21263 (W. Va. July 22, 1993) (Workman, C.J.): 189 W.Va. 570, 433 S.E.2d 281:

Overruling, in part, the Court's inadequate verdict analysis in Freshwater v. Booth, 160 W. Va. 156, 233 S.E.2d 312 (1977), the Court affirmed the vitality of Type 1 cases, where the evidence of liability is clear, and Type 4 cases, where the evidence of liability is strong, but dismissed, in light of the Court's adoption of the concept of comparative fault, the value of Type 2, where the evidence of liability is strongly contested, and Type 3, where the evidence of liability is weak.

Eddie Bowling, et al. v. Ansted Chrysler-Plymouth-Dodge, Inc., and David Akers, No. 20994 (W. Va. December 11, 1992) (Miller, J.): 188 W.Va. 468, 425 S.E.2d 144:

In a case where the plaintiffs charged a dealership and its president with fraudulently misrepresenting rental cars as "factory cars," the Court held that where it can be shown, by clear and convincing evidence, that a defendant has engaged in fraudulent conduct which has injured the plaintiff, reasonable attorney fees may be awarded in addition to compensatory and punitive damages.

Cell Inc., a West Virginia corporation v. Ranson Investors, a West Virginia limited partnership; George W. Bushey, individually; and Vernon L. Tetlow, individually, No. 20858 and Cell, Inc., a West Virginia corporation v. Ranson Investors, a West Virginia limited partnership; George W. Bushey, individually; and Vernon L. Tetlow, individually, No. 20861 (W. Va. December 9, 1992) (Neely, J.): 189 W.Va. 13, 427 S.E.2d 447:

Rejecting an attempt by a prospective tenant to recover damages for lost profits after a proposed shopping center was never built, the Court held that (1) a new business may recover lost profits in a breach of contract action, but only if the plaintiff establishes the lost profits with reasonable certainty and (2) under the facts presented, the evidence of lost profits were too speculative to support an award of damages.

Sara W. Slack v. Kanawha County Housing and Redevelopment Authority, etc., et al., No. 20725 (W. Va. July 9, 1992) (Miller, J.): 188 W.Va. 144, 423 S.E.2d 547:

Where trial court refused to give punitive damages instruction based upon the plaintiff's failure to introduce evidence of the defendants' net worths, the Court reversed, holding that the defendant, not the plaintiff, bears the burden of introduce financial information in mitigation of a punitive damage award.

Ronald Davis, Executor of the Estate of Jennings Davis v. The Celotex Corporation, No. 20651 (W. Va. June 12, 1992) (Miller, J.): 187 W.Va. 566, 420 S.E.2d 557:

Affirming an award of punitive damages of $40,000 in an asbestos case, the Court held (1) when an asbestos manufacturer has actual or constructive knowledge of severe health hazards associated with its product, but continues to manufacture and distribute the product, the manufacturer may be found liable for punitive damages; (2) a successor corporation can be held liable for the predecessor's debts if there was an express or implied assumption of liability, if the transaction was fraudulent, if some element of the transaction was not in good faith, if the successor corporation was formed through a consolidation or merger, or if the successor corporation is a mere continuation or reincarnation of the predecessor; and (3) when a successor corporation has actual or constructive knowledge that a predecessor corporation manufactures a product that is know to create serious health standards, and the successor corporation continues to manufacture the product, it may be found liable for punitive damages for liabilities incurred by the predecessor company in the manufacture of such product.

Daphne Colleen Pasquale, Personal Representative of the Estate of Michael David Pasquale v. Ohio Power Company, an Ohio corporation, Central Operating Company, a West Virginia corporation; and Gallia Refrigeration, Inc., a/k/a Pasquale Electric Company, an Ohio corporation, No. 20264 (W. Va. May 15, 1992) (Miller, J.): 187 W.Va. 292, 418 S.E.2d 738:

Affirming a $6.2 million verdict in a wrongful death case against a power plant and a general contractor arising from the electrocution of the employee of a subcontractor, the Court held that the factors to be considered in determining whether a verdict is excessive include (1) whether the defendant actively cross-examined the plaintiff's damages witnesses; (2) whether the defendant introduced its own damages evidence; and (3) whether the defendant sought to ensure that the jury was properly instructed on damages. With respect to the calculation of prejudgment interest, the Court further held that future wage loss is not a prejudgment loss or special damage under W. Va. Code § 56-6-31.

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

Affirming a verdict of $19,000 in compensatory damages and $10 million in punitive damages, the Court held that (1) appeals from punitive damage awards made prior to December 5, 1992, should address the factors set forth in Syllabus Points 3 and 4 of Garnes v. Fleming Landfill, 186 W.Va. 656, 413 S.E.2d 897 (1991), summarizing the evidence presented to the jury or to the trial court at the post-judgment review stage; (2) when a defendant has acted without malice, a punitive to compensatory damages ratio of approximately 5:1 is the most that would be appropriate; and (3) when a defendant has acted with malice, a punitive to compensatory damages ratio of more than 5:1, as in the instant case, may be appropriate.

Boyd Thurman Beard and Mary F. Beard v. Romeo Y. Lim, John A. B. Holt and the Eye and Ear Clinic of Charleston, Inc. v. Ethicon, Inc., and Hospital and Physicians Supply Co., Inc., No. 19670 (W. Va. July 18, 1991) (Workman, J.): 185 W.Va. 749, 408 S.E.2d 772:

Where over 13 years of prejudgment interest was calculated on a general verdict, the Court reversed, holding that failure of a defendant to submit a special interrogatory will not necessarily justify an award of prejudgment interest on the entire general verdict where the amount of special damages is readily ascertainable.

Larry Schartiger and Donna Schartiger, his wife, et al. v. Land Use Corporation, a West Virginia corporation, et al., No. 19482 (W. Va. July 11, 1991) (Neely, J.): 187 W.Va. 612, 420 S.E.2d 883:

In a suit brought by landowners whose water wells were rendered unproductive by the defendants' mining activities, but where the defendants' offered to connect the plaintiffs to the local public water system and to pay damages of $30,000, which was rejected by the plaintiffs in favor of a jury trial, which resulted in an award of restored water but no compensatory damages, the Court held that, under W. Va. Code § 22A-3-25(f), an award of attorney fees to the "prevailing" party may only be made where the plaintiff demonstrates that the litigation effected a "material alteration of the legal relationship of the parties in a manner which the legislature sought to promote in the fee statute." Moreover, the Court stated that attorney fees may be limited to those incurred prior to the rejection of a reasonable offer of settlement.

George W. Bostic v. Mallard Coach Company, Inc., No. 19790 (W. Va. June 27, 1991) (Neely, J.): 185 W.Va. 294, 406 S.E.2d 725:

Discussing the damages available under the West Virginia "lemon law," W.Va. Code § 46A-6A-4(b), the Court held that the trier of fact may award one or more of the following: (1) refund of the purchase price; (2) diminished value; (3) cost of repair; (4) loss of use; (5) annoyance; (6) inconvenience; and (7) reasonable attorney fees. On another issue, the Court granted an additur in order to compensate the plaintiff for the cost of his expert witness, which was initially awarded by the jury, but was not included in its final award after it was instructed to recalculate its verdict, holding that when an initial jury verdict specifying the payment of certain expenses is not included in its final verdict calculated after instructions to award a sum certain, it is appropriate for the trial court to enter an additur or, at the election of the defendant, to award a new trial on the issue of damages alone.

John Fullmer, M.D. and Marlene Fullmer v. Swift Energy Co., Inc., No. 19630 (W. Va. April 22, 1991) (Neely, J.): 185 W.Va. 45, 404 S.E.2d 534:

Affirming a jury award of $2,500 in punitive damages, but no compensatory damages, to property owners whose riparian rights were violated when, over several years, the defendant's gas wells caused mud to flow into a stream running through the plaintiffs' property, the Court held that unless damages are so inadequate under the facts that reasonable persons cannot differ regarding their inadequacy, a jury verdict should not be set aside.

Charles R. Miller v. Monongahela Power Company, No. 19640 (W. Va. February 7, 1991) (Neely, J.): 184 W.Va. 663, 403 S.E.2d 406:

Even though the defendant failed to submit a special damages interrogatory under the decision in Grove ex rel. Grove v. Myers, 181 W.Va. 342, 382 S.E.2d 536 (1989), the Court held that because the matter had not been deliberately obfuscated or the error invited by defense counsel, and because plaintiff's counsel admitted prejudgment interest had been included in his expert's calculation of special damages, the Court reduced the judgment by the amount of prejudgment interest erroneously included in the special damage award.

Board of Education of McDowell County v. Zando, Martin & Milstead, Inc., No. 18773 (W. Va. February 22, 1990) (Miller, J.): 182 W.Va. 597, 390 S.E.2d 796:

In a suit to recover damages, for alleged flaws in the design and construction of a school building, grounded both in tort and in contract, the Court held that prejudgment interest should have been awarded, calculated from the date of the cause of action and reduced by the amount of settlements.

Mark A. Robinson, individually and Julia A. Robinson, individually and as parent and natural guardian of Mark A. Robinson, II, an infant v. Charleston Area Medical Center, Inc., a West Virginia corporation, and Kanoj K. Biswas, M.D., No. 20109 (W. Va. December 20, 1991) (McHugh, J.): 186 W.Va. 720, 414 S.E.2d 877:

Reducing a $15.25 million verdict to $11.75 million for the family of an infant who suffered permanent brain damage as the result of an obstetrician's alleged malpractice, the Court upheld the constitutionality of W. Va. Code § 55-7B-8, which imposes a $1 million cap on noneconomic damages in medical malpractice actions, which it further held applies as the maximum amount that can be awarded for the aggregate claims of all plaintiffs against a health care provider as defined in the statute.

Buckhannon-Upshur County Airport Authority v. R & R Coal Contracting, Inc., etc., Continental Casualty Company, etc., et al., No. 20211 (W. Va. December 17, 1991) (Workman, J.): 186 W.Va. 583, 413 S.E.2d 404:

Rejecting a claim against an insurance company for prejudgment interest in excess of the stated policy limits, the Court held (1) prejudgment interest is not a cost, but a form of compensatory damages, and (2) absent a bad faith claim or policy language to the contrary, prejudgment interest may not be awarded in excess of stated policy limits.

Desco Corporation, dba Colliers Industries v. Harry W. Trushel Construction Company and Fire Foe Corporation v. Industrial Risk Insurers, No. 19993 (W. Va. December 6, 1991) (Miller, C.J.): 186 W.Va. 430, 413 S.E.2d 85:

Rejecting an attempt by an insured to recover damages from sprinkler system installer for loss of inventory in a fire, the Court held that (1) two categories of damages are available in a breach of contract action: direct damages for which there is no requirement that the parties actually anticipated them and consequential damages for which the plaintiff must show that at the time of the contract the parties could reasonably have anticipated would be a probable result of a breach, and (2) although whether contract damages are direct or consequential is a question of law, whether special circumstances exist to show that consequential damages are within the reasonable contemplation of the contracting parties is a question of fact.

Julian Garnes and Sharon Garnes v. Fleming Landfill, Inc., and John T. Fleming, No. 20284 (W. Va. December 5, 1991) (Neely, J.): 186 W.Va. 613, 413 S.E.2d 879:

In an landmark case, the Court redefined the area of punitive damages, holding that (1) punitive damages may not be awarded in the absence of compensatory damages; (2) punitive damages must bear a reasonable relationship to the potential of harm caused by the defendant's actions; (3) there must be a reasonable constraint on jury discretion in the award of punitive damages; (4) there must be meaningful review of punitive damage awards by trial courts; and (5) there must be meaningful review of punitive damage awards by appellate courts. The Court further established that the factors to be considered by a jury in awarding punitive damages are (1) the reasonableness of the punitive damages awarded in light of the actual or potential harm resulting from the defendant's actions; (2) the knowledge of the defendant; (3) the intentional character of the defendant's acts; (4) the existence of prior acts of similar conduct by the defendant; (5) the alacrity with which the defendant took remedial measures; (6) the promptness of an offer of fair settlement; (7) the necessity of removing a profit motive for the defendant's conduct; (8) the need to punish the defendant to deter similar acts in the future; (9) the reasonableness of punitive damages in light of the amount of compensatory damages awarded; and (10) the defendant's financial position. In addition to these factors, the Court finally established that reviewing trial and appellate courts should consider (1) the costs of litigation; (2) the imposition of criminal sanctions on the defendant; (3) the litigation of similar cases against the defendant; and (4) the cost of litigation to the plaintiff.

Carl W. Smithson, Sr., dba Smithson Brothers Well Service Co. v. United States Fidelity & Guaranty Company and Basil Thumm, No. 20073 (W. Va. November 22, 1991) (Miller, C.J.): 186 W.Va. 195, 411 S.E.2d 850:

With respect to the mitigation of damages where the insurance company's inaction allegedly delayed final resolution of a fire loss claim on a piece of commercial equipment, the Court held that, in a contract action, where a defendant has refused to perform and had the same opportunity to mitigate damages as the plaintiff by taking some action, the defendant is foreclosed from asserting that the plaintiff failed to mitigate damages.

Phyllis Belcher and Stephanie L. Belcher v. Sherry L. Goins, No. 19566 (W. Va. December 19, 1990) (McHugh, J.): 184 W.Va. 395, 400 S.E.2d 830:

Overruling Wallace v. Wallace, 155 W. Va. 569, 184 S.E.2d 327 (1971), the Court held that a minor or handicapped child physically, emotionally, and financially dependent upon his or her parent, may maintain a cause of action for loss of parental consortium, which is the intangible, nonpecuniary benefits arising from the relationship between a child and a parent, including society, companionship, comfort, guidance, kindly offices, advice, protection, care, and assistance, but not including the value of nursing, domestic or household services provided by the child to the injured parent. Ordinarily joined with the injured parent's action against the alleged tortfeasor, the amount of damages for parental consortium depend upon (1) the child's age; (2) the nature of the relationship between child and parent; (3) the child's emotional characteristics; and (4) the existence of other consortium-giving relationships. On related issues, the Court further held (1) because of the derivative nature of a parental consortium claim, any recovery will be reduced by the amount of comparative contributory negligence of the injured parent; (2) with respect to the issue of retroactivity, that parental consortium actions must be brought no later than thirty days after the filing of the opinion where the parent's action has been brought for injuries inflicted no more than two years prior to the opinion.

Martha J. Rice, Administratrix of the Estate of Joyce Gail Rice v. Larry E. Ryder and Steven W. Ryder, No. 19386 (W. Va. December 6, 1990) (Brotherton, J.): 184 W.Va. 255, 400 S.E.2d 263:

Where an unmarried, childless woman was killed in an automobile accident, the Court held that, pursuant to W. Va. Code § 55-7-6, financial dependency is not a prerequisite to a wrongful death recovery, but that her parents and siblings could receive "compensation for reasonably expected loss of income of the decedent, and services, protection, care and assistance provided by the decedent." Moreover, with respect to distribution of the wrongful death proceeds, the Court held that, pursuant to the wrongful death statute, damages shall be distributed in accordance with the decedent's will or, if there is no will, in accordance with the laws of descent and distribution.

Patricia Ann Paxton v. Paul Crabtree, Administrative Director, West Virginia Supreme Court of Appeals, State of West Virginia, Velt King, Magistrate of Clay County, No. 19615 (W. Va. December 6, 1990) (Miller, J.): 184 W.Va. 237, 400 S.E.2d 245:

With respect to mitigation of damages, the Court held that the defendant bears the burden of proving lack of diligence by demonstrating (1) substantially equivalent positions were available, and (2) the complainant failed to exercise reasonable diligence in seeking such positions.

Tom Ellis and Mara Ellis, his wife v. Honorable Charles E. King, Judge of the Circuit Court of Kanawha County; JMI Transport, Inc., an Arkansas corporation, and Hamilton M. Potter, No. 19792 (W. Va. December 5, 1990) (Brotherton, J.): 184 W.Va. 227, 400 S.E.2d 235:

Where new Volvo was damaged in an accident three days after its purchase, the Court held that if the owner could show a decrease in value due to structural damage existent after its repair, then recovery beyond the cost of repair would be permitted.

Richard W. Adams and Sandra Adams v. Nissan Motor Corporation in U.S.A., No. 19041 and Richard W. Adams and Sandra Adams v. Nissan Motor Corporation in U.S.A., No. 19130 (W. Va. November 3, 1989) (Brotherton, C.J.): 182 W.Va. 234, 387 S.E.2d 288:

Where buyers sought post-verdict damages because they were required to make payments, during pendency of appeal, on a vehicle determined to be a "lemon," the Court held that post-judgment interest adequately compensated such loss and no additional recovery was available. The Court further held that because of the comprehensive nature of the lemon law statute, attorney fees were not recoverable under a "private attorney general" theory.

DECLARATORY JUDGMENT

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

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

Darrell V. McGraw, Jr., in his official capacity as Attorney General of West Virginia v. Honorable Gaston Caperton, in his official capacity as Governor of the State of West Virginia, et al., No. 22011 (W. Va. May 19, 1994) (Brotherton, C.J.): 191 W.Va. 528, 446 S.E.2d 921:

Affirming a lower court ruling, the Court held that the Attorney General is not a "person" within the meaning of the declaratory judgment statute and may not bring an action for declaratory relief in his official capacity.

Colene C. McCormick v. Vondon Ray McCormick, Jr., et al., No. 19484 (W. Va. November 29, 1990) (Neely, C.J.): 184 W.Va., 399 S.E.2d 469:

Where wife brought declaratory judgment action against husband and his business partners in order to determine the validity of a buy-sell agreement, the Court held that a declaratory judgment action brought by a divorcing spouse to challenge the validity or construction of business contracts that threaten to impair the value of marital property will not be dismissed solely on the grounds that a separate divorce proceeding is pending.

DEEDS

William E. Galloway v. Rose Ann Cinello, No. 21226 (W. Va. October 23, 1992) (Miller, J.): 188 W.Va. 266, 423 S.E.2d 875:

Where attorney improperly acted as both notary and trustee on a deed of trust, the Court held (1) a notary with a disqualifying interest may not legally perform, under W. Va. Code § 29C-3-102, any notarial act in connection with the transaction; (2) to determine whether a notary's disqualifying interest should act to void the instrument acknowledged, a court should consider 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, overruling Tavenner v. Barrett, 21 W. Va. 656 (1883); (3) once it is shown that actual prejudice, unfair dealing, or undue advantage has resulted from a notary's disqualifying interest in an instrument, the burden shifts to the notary to demonstrate than no improper benefit was obtained and no harm occurred as the result of the acknowledgment; and (4) a notary is liable to persons involved, under W. Va. Code § 29C-6-101, for all damages proximately caused by the notary's "official misconduct," which means the unauthorized, unlawful, abusive, negligent, reckless, or injurious exercise of the power or authority of a notary.

Raymond Kenneth McGuire, et al. v. Gertrude Walker, et al., No. 20917 (W. Va. October 23, 1992) (Miller, J.): 188 W.Va. 214, 423 S.E.2d 617:

Where defendant sought to introduce evidence of ownership of disputed land that was the subject of a number of deeds which referred back to a school lands sale deed, the Court stated that such deeds were admissible, holding that R. Evid. 803(15) permits the admission of statements in documents affecting an interest in property.

DEFAMATION

Stan Maynard v. Daily Gazette Company, a corporation, dba The Charleston Gazette, No. 21815 (W. Va. July 20, 1994) (Brotherton, C.J.): 191 W.Va. 601, 447 S.E.2d 293

Reversing a $160,000 verdict in a defamation action brought by a professor/student athlete program director after a newspaper charged that he "parlayed [goodwill engendered by his direction of a student/athlete program] into a Marshall basketball scholarship for his son," that he was "part of the corruption of college athletics," and that he was a "culprit[] in this sorry system," the Court held that a statement of opinion which does not contain a provably false assertion of fact is entitled to full constitutional protection.

Dean M. Harris v. Harold Adkins, No. 21537 (W. Va. June 28, 1993) (Miller, J.): 189 W.Va. 465, 432 S.E. 2d 549:

Overruling its holding in Webb v. Fury, 167 W. Va. 434, 282 S.E.2d 28 (1981), regarding absolute privilege under the right to petition clause of the West Virginia Constitution, where city council candidate was sued after making allegedly defamatory comments about a city councilman at a public city council meeting, the Court held that the right to petition under W. Va. Const. art. III, § 16 does not provide an absolute privilege for intentional or reckless falsehoods, but the right is protected by the actual malice standard of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).

Raymond D. Hinerman v. The Daily Gazette Company, Inc., No. 20489 (W. Va. July 16, 1992) (Neely, J.): 188 W.Va. 157, 423 S.E.2d 560:

Affirming a $375,000 defamation award to an attorney whom the defendant, using a report of an appeal petition filed in the Supreme Court, represented had "seize[d] 100 percent of [his client]'s Workers' Compensation benefits," when, in fact, the attorney only had a lien against 100 percent of his client's workers' compensation benefits, the Court adopted new standards for defamation cases, holding that (1) egregious deviation from generally accepted standards of journalism, animus toward plaintiff, or other "malicious" motives are relevant in ascertaining whether the defendant acted with a subjective realization of falsehood or in reckless disregard for the truth; (2) the standard for determining liability depends on the sophistication of the defendant; (3) publication of defamatory material contained in an public document is privileged if the publication is "accurate and complete" or a "fair abridgement," if the publication is "fair," and if the publication does not depart from the public document in a manner which "convey[s] an erroneous impression to those who hear or read it;" (4) although courts should be vigilant in protecting media defendants against "large punitive damages awards," there can be "no tolerance for media arrogance," and failure to make a "prompt, prominent and abject apology," together with an "offer of reasonable compensation" may justify an award of punitive damages; (5) the term "public official" for purposes of defamation actions include only those persons "who have, or appear to the public to have, substantial responsibility for the conduct of governmental affairs," and (6) where a person is merely a "public employee," but was not identified in such capacity by the defendant, the lower standard of recovery applies for recovery in a defamation action.

Ronald L. Dixon v. Ogden Newspapers, Inc., a corporation and Donald J. Naegele v. Ogden Newspapers, Inc., a corporation, No. 19425 (W. Va. February 27, 1992) (Brotherton, J.): 187 W.Va. 120, 416 S.E.2d 237:

Reversing a $650,000 defamation award to two police officers who complained that newspaper articles intimated that they had warned the owner of a house of ill repute of an impending raid, the Court held (1) a public official must present clear and convincing evidence of actual malice in order to prevail in a defamation action; (2) evidence that the defendant avoided the truth or omitted known facts in order to distort the truth may constitute actual malice; and, (3) the evidence presented in the instant case was not sufficiently clear and convincing to establish that the defendant had acted with actual malice.

Michael C. Farber v. Walter J. Dale, individually and in his capacity as the Chairman of the West Virginia Health Care Cost Review Authority, No. 19138 (W. Va. April 12, 1990) (Brotherton, J.): 182 W.Va. 784, 392 S.E.2d 224:

In a defamation action brought by an attorney against the Chairman of the Health Care Cost Review Authority who filed an ethics complaint against such attorney charging that the attorney's conduct at a hearing before the Authority, "reminded him of the Gestapo in a Fascist tactics meeting," the Court held that Article VI, § 43 of the West Virginia State Bar Constitution grants absolute immunity in actions for libel against complaining witnesses and parties in attorney disciplinary proceedings.

DESCENT AND DISTRIBUTION

Roy Lee McClure and Mary Frances McClure, his wife v. Lu Ann Dotson and Lu Ann Dotson McClure, Administratrix of the Estate of James Edward McClure, and Kansas City Life Company, Inc., a corporation, No. 19777 (W. Va. March 15, 1991) (Miller, C.J.): 184 W.Va. 649, 403 S.E.2d 197:

Where parents alleged that their daughter-in-law had killed their son and that she should not recover his life insurance proceeds, the Court held that although W.Va. Code § 42-4-2 permits proof of a conviction of felonious killing to bar the slayer from obtaining life insurance proceeds or property from the decedent, if there is no such conviction, then evidence of an unlawful and intentional killing must be demonstrated by a preponderance of the evidence in a civil action.

DISCOVERY

B.F. Speciality Company, a corporation, and Martin Shaffer v. Charles M. Sledd Company, a corporation, No. 23072 (W. Va. July 19, 1996) (Recht, J.):

Refusing to reverse a defense verdict where the chief assignments of error were regarded the failure of the trial court to order complete discovery, the Court held (1) a trial court has broad discretion in controlling the discovery process, and (2) an abuse of discretion with respect to discovery management occurs when the trial court acts so arbitrarily and unreasonably as to indicate a lack of careful consideration and to shock the appellate court's sense of justice.

State of West Virginia ex rel. James H. Paige, III, Secretary/Tax Commissioner of the West Virginia Department of Tax and Revenue v. Honorable Herman G. Canady, Jr., Judge of the Circuit Court of Kanawha County, James M. Sturgeon, Jr., and Carolyn S. Sturgeon, No. 23273 (W. Va. July 17, 1996) (Albright, J.):

Prohibiting enforcement of a subpoena against the state tax commissioner in a FOIA action, the Court held (1) highly-placed public officials are not subject to deposition absent a showing that their testimony is necessary to avoid undue prejudice; (2) in determining whether to permit the deposition of a highly-placed official, the court should consider (i) the nature of the underlying case, (ii) the degree to which the official has first-hand knowledge about or had direct involvement in the matter in dispute, (iii) the probable length of the deposition and the effect of the official's absence on the conduct of his or her office, and (iv) whether other discovery alternatives are available that would provide the information sought by deposition; and (3) the burden is upon the party requesting the deposition of a highly-placed public official to demonstrate its necessity.

State of West Virginia ex rel. United States Fidelity and Guaranty Company and Tim Linsky v. Honorable Herman G. Canady, Jr., Judge of the Circuit Court of Kanawha County, and Robert M. Lovell, No. 22867 (W. Va. July 11, 1995) (Cleckley, J.): 194 W.Va. 431, 460 S.E.2d 677:

Issuing a writ of prohibition against compelled disclosure of documents determined to be protected by the attorney-client privilege and work product exception in the context of an insurance bad faith suit, the Court held (1) where a discovery order involves compelled disclosure of confidential materials that are exempted by R. Civ. P. 26(b)(1) and (3), the exercise of the Court's prohibition jurisdiction is appropriate; (2) the person asserting it has the burden of establishing existence of the elements of attorney-client privilege or work product exception; (3) compelled disclosure of documents prepared by attorneys for their clients' information and future action is presumptively erroneous; (4) a party may waive the attorney-client privilege by asserting claims or defenses that put his or her attorney's advice in issue; and (5) requested disclosure of attorney work product should be carefully evaluated.

Shelley S. McDougal and David L. McDougal v. Julie K. McCammon, M.D., No. 22215 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 229, 455 S.E.2d 788:

Affirming a defense verdict in a medical malpractice case where the plaintiff was surprised at trial by the introduction of a surveillance videotape which was not disclosed despite a discovery request, the Court held (1) rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are within the discretion of the trial court; (2) evidentiary and procedural rulings by a trial court are subject to an abuse of discretion standard of review; (3) subject to certain exceptions, impeachment by contradiction may properly attack all kinds of testimony, whether given on direct or on cross-examination, as well as inferences suggested by evidence or arguments of counsel interpreting the evidence; and (4) in order to preserve the claim of unfair surprise as the basis for exclusion of evidence, the aggrieved party must move for a continuance or recess.

State of West Virginia ex rel. Ethel G. Erickson v. Honorable George Hill, Judge of the Circuit Court of Wood County, and Charles F. Erickson, Executor of the Estate of Charlie O. Erickson, No. 22197 (W. Va. May 26, 1994) (Neely, J.): 191 W.Va. 320, 445 S.E.2d 503:

Modifying a circuit court's order requiring a wife to disclose all of her assets having a value of $50 or more to require the wife to disclose all of her assets having a value of $500 or more, the Court held that the financial disclosure procedure in domestic relations cases should be as follows: (1) both parties should provide the asset, liability, and other relevant information required by Rule 11 of the Rules of Practice and Procedure for Family Law on the standard forms promulgated by the Court and (2) if this disclosure is deemed insufficient, the party seeking additional discovery should ask the family law master for discovery under Rule 81(a)(2) of the Rules of Civil Procedure.

State of West Virginia ex rel. Maurillo Chaparro and Susan Chaparro, husband and wife v. Honorable Christopher C. Wilkes, Judge of the Circuit Court of Berkeley County; Grove's Furniture Store; Dennis Grove, individually; and Southland Corporation, No. 21903 (W. Va. December 9, 1993) (Neely, J.): 190 W.Va. 395, 438 S.E.2d 575:

In prohibition proceeding challenging a discovery order granting a request by defendants for access to witness statements, witness names and addresses of witnesses, and a diary kept by plaintiffs at direction of counsel, the Court held that (1) although statements taken from witnesses during an investigation in anticipation of litigation are protected in the absence of a R. Civ. P. 26(b)(3) showing, the names and addresses of the witnesses are not protected, and (2) because the defendants failed to demonstrate a "substantial need" for the diary or that they would suffer "undue hardship," the diary was protected, and the trial court abused its discretion by ordering its disclosure.

State of West Virginia ex rel. Joan B. Kitzmiller, Executrix of the Estate of Eugene O. Kitzmiller v. Honorable John L. Henning, Jr., Judge of the Circuit Court of Randolph County; Paul Eugene Nefflen, M.D.; and Davis Memorial Hospital, a West Virginia corporation, No. 21841 (W. Va. November 2, 1993) (Neely, J.): 190 W.Va. 142, 437 S.E.2d 452:

Prohibiting a circuit court order which directed the plaintiff in a medical malpractice action to execute an authorization to the defendants to conduct ex parte interviews with the deceased's treating physicians, the Court held (1) a fiduciary relationship exists between a physician and a patient; (2) although a patient impliedly consents to the release of medical information regarding conditions which are the subject of a malpractice action, such consent does not extend to ex parte contacts outside court-authorized discovery methods; and (3) the formal discovery methods provided in the Rules of Civil Procedure provide the exclusive means by which an adverse party may obtain pretrial discovery of medical testimony relating to a patient's medical condition.

State of West Virginia ex rel. John David Letts, an infant under the age of 18 years who sues by his parents and next friends, et al. v. Honorable Paul Zakaib, Judge of the Circuit Court of Kanawha County; Charleston Area Medical Center, Inc., a West Virginia corporation; and Ellen Szego, M.D., No. 21599 (W. Va. July 16, 1993) (Workman, C.J.): 189 W. Va. 616, 433 S.E.2d 554:

Where trial judge had ordered infant plaintiff to submit to an MRI examination despite concerns of his parents that such exam could result in serious harm, the Court awarded a writ of prohibition, holding that (1) a trial court must find that the movant has shown good cause prior to compelling an independent medical examination pursuant to R. Civ. P. 35; (2) the good cause requirement of R. Civ. P. 35 mandates an affirmative showing that the subject of the examination is genuinely in controversy; (3) once good cause is demonstrated, the opposing party must demonstrate that the proposed examination poses more than a minimal level of risk; and (4) once the opposing party demonstrates that the proposed examination poses more than a minimal level of risk, the movant must demonstrate that the examination is "safe."

Catherine Young v. Joseph Saldanha, No. 21274 (W. Va. April 23, 1993) (Workman, C.J.): 189 W.Va. 330, 431 S.E.2d 669:

Rejecting a malpractice plaintiff's argument that the defendant physician waived the statutory peer review privilege by virtue of his suit to obtain peer review material following revocation of his staff privileges, the Court held that to effect a waiver of the privilege of confidentiality which attends information and records properly the subject of health care peer review pursuant to W. Va. Code §§ 30-3C-1 to -3, an individual must formally indicate his intent to waive confidentiality by executing a valid waiver.

State of West Virginia ex rel. Donald C. McCormick v. Honorable Paul Zakaib, Judge of the Circuit Court of Kanawha County; Allstate Insurance Company, an Illinois corporation; and David Dailey, No. 21458 (W. Va. February 25, 1993) (Miller, J.): 189 W.Va. 258, 430 S.E.2d 316:

Reversing an order barring admission of allegedly confidential attorney-client and attorney work-product material, the Court held that if a party discloses material in the discovery process and makes no claim of privilege, such privilege is waived for purposes of the admissibility of such material.

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

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

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

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

Dorothy Dent v. Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, Jack Fruth, and Fruth Pharmacy, Inc, a corporation, No. 20086 (W. Va. June 6, 1991) (Neely, J.): 185 W.Va. 171, 406 S.E.2d 68:

Overturning a protective order which prohibited plaintiff's counsel from speaking with defendants' non-managerial employees, the Court held that a corporate "party" for purposes of Rule 4.2 of the Rules of Professional Conduct, which prohibits communication with a "party" represented by counsel, includes only those officials (1) who have the legal power to bind the corporation in the matter, (2) who are responsible for implementing the advice of the corporation's attorney, or (3) whose interests are directly at stake in the litigation.

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

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

Ronald Luster and Sharon Luster v. James E. Brown, No. CC994 (W. Va. October 30, 1989) (Brotherton, C.J.): 182 W.Va. 122, 386 S.E.2d 489:

Where a report of defendant's medical expert was ironically more favorable than that of plaintiffs' expert and plaintiffs sought to subpoena such expert as their witness, the Court held that where a physical examination is conducted pursuant to Rule 35(b) of the Rules of Civil Procedure, there is an exception under Rule 26(b) (4) (B) of the Rules of Civil Procedure to the general rule limiting discovery of expert opinions prepared in anticipation of litigation, which permits opposing parties to discover and use the reports of such physical examinations at trial.

DISCRIMINATION

West Virginia Human Rights Commission on its own Behalf and on Behalf of Jr. Mitchell v. John Garretson, No. 23078 (W. Va. February 15, 1996) (Cleckley, J.): 196 W. Va. 118, 468 S.E.2d 733:

Reversing the dismissal of a housing discrimination suit not instituted within the thirty-day period prescribed by W. Va. Code § 5-11A-13(o)(1), the Court held that (1) Human Rights Commission complainants have a property interest in their complaints that cannot be extinguished except by a ruling on the merits or upon a showing of good cause related to the complainants' actions or failure to act and (2) dismissal of a housing discrimination suit, which has been timely and properly filed with the Human Rights Commission, because of its failure to timely remove the case to circuit court as provided W. Va. Code § 5-11A-13(o)(1), would deprive the complainant of his or her property interest in the resolution of the complaint without due process of law, and is therefore improper.

Larry E. Paxton v. State of West Virginia Department of Tax and Revenue, No. 22218 (W. Va. November 23, 1994) (Miller, J.): 192 W.Va. 213, 451 S.E.2d 779:

Affirming a circuit court ruling that the State has an obligation to ensure that its lottery outlets are physically accessible to the disabled, the Court held that because the Lottery Commission is a public entity within the meaning of the Americans with Disabilities Act and provides an aid, benefit, or service on a continuing basis to its licensees, its licensing of lottery outlets is governed by 28 C.F.R. § 35.130(b)(1), which precludes a public entity that provides any aid, benefit, or service from allowing disability discrimination through contractual, licensing, or other arrangements.

DOMESTIC RELATIONS

Tammera L. Smith v. Clyde Ellsworth Smith, III, No. 23267 (W. Va. July 19, 1996) (Workman, J.):

Reversing a ruling that the appreciation of separately-owned, closely-held corporate stock, during the marriage, was the husband's separate property, the Court held that where one spouse worked for a corporation, during the marriage, as an officer or director, and had a significant, separate ownership interest in such corporation, and where the other spouse also worked for the corporation during the marriage as an employee, at least such portion of the appreciation in the value of corporate stock during the marriage attributable to the active involvement of each spouse must be deemed marital property.

Searene Two Feathers Rock v. Orval Bahe Rock v. West Virginia Department of Health and Human Resources, No. 23064 (W. Va. July 19, 1996) (Workman, J.):

Where a mother fled to West Virginia after a Maryland court awarded visitation rights to a father whom their child accused of sexually molesting her, and where the Maryland court eventually awarded custody to the father, the Court affirmed the circuit court's ruling that jurisdiction under the UCCJA was proper in Maryland, holding that upon verification by a West Virginia court that a custody proceeding is pending in another state and that the other court desires to continue to assert jurisdiction pursuant to the UCCJA, the West Virginia court is mandated under W. Va. Code § 48-10-6a to defer jurisdiction to the other court.

Lisa S. Rogers v. Robert Alan Rogers, No. 23075 (W. Va. July 11, 1996) (Recht, J.):

Where husband's adultery was found to have contributed to the divorce, but wife was awarded only $100 monthly rehabilitative alimony for a period of five years, the Court reversed and remanded, holding that punitive alimony may be awarded where additional support is required to (i) reimburse the innocent spouse for expenses related to the fault, e.g., psychological counseling; (ii) assure the innocent spouse continues to enjoy the standard of living attained during the marriage; and (iii) discourage the behavior that contributed to dissolution of the marriage.

Nancy H. Mayhew v. Robert E. Mayhew, No. 23263 (W. Va. July 5, 1996) (Albright, J.):

With respect to several issues presented in a divorce proceeding, the Court held (1) with respect to a business in which one or both of the spouses had an interest during the marriage, any appreciation in the value of such business during the marriage arising from the investment of marital property or the work of either party in the business is equitable property; (2) a party asserting that property is marital or separate has the burden of proof; (3) although the right to receive rehabilitative alimony terminates with the payee's death, such alimony should continue upon the payor's death unless his or her estate is insufficient to meet other obligations or other equitable principles apply; (4) a court may compel either party to pay the other's reasonable attorney fees and costs in a divorce proceeding; and (5) whether claims or defenses in a divorce proceeding have been asserted for vexatious, wanton or oppressive purposes is a relevant consideration in determining the award of attorney fees and costs.

Penny A. Kyle v. Edward D. Kyle, No. 23061 (W. Va. July 5, 1996) (Albright, J.):

With respect to several issues presented in a divorce proceeding, the Court held (1) one co-tenant, such as a spouse, occupying land to the exclusion of another co-tenant, such as the other spouse, is liable for the reasonable rental value of the property until its formal distribution; (2) the existence of an encumbrance upon real estate does not preclude an order for its sale in a divorce action; (3) desertion may be used to deny alimony only where the divorce is granted upon such ground; (4) living separate and apart for more than one year, though akin to desertion, will not support the denial of alimony; and (5) accrued alimony may be discharged by order on any ground, such as fraud or other equitable circumstance, that would ordinarily warrant the setting aside of a decree by a court of equity.

Marshall Costello, Administrator of the Estate of Donna F. McDonald Costello v. Michael McDonald, No. 22854 (W. Va. June 14, 1996) (McHugh, C.J.):

With respect to the right to child support arrearages upon the death of the obligee, the Court held (1) upon death of a child support obligee, there is a presumption that the obligee's estate is entitled to any arrearages; (2) the presumption of ownership of arrearages in a child support obligee's estate may be rebutted by clear and convincing evidence that the welfare of the child[ren] was [were] adversely affected by the obligor's failure to pay support during the life of the obligee; and (3) if the presumption is rebutted, the court must determine the amount of the arrearage which should be given to the child[ren] to ensure the child[ren]'s maintenance in the standard of living to which the child[ren] has [have] become accustomed.

State of West Virginia ex rel. West Virginia Department of Health and Human Resources, Child Advocate Office, on Behalf of Jason Gavin S. by Diann S. v. Carl Lee H., No. 23108 (W. Va. June 14, 1996) (McHugh, C.J.):

Where paternity action was not instituted until 14 years after the birth of the child, allegedly because the mother did not realize until years later that she had been sexually assaulted by the defendant while she was unconscious after having become intoxicated at a party, the Court reversed the circuit court's application of the doctrine of laches, reinstating a child support obligation of nearly $100,000, holding that (1) where a plaintiff delays instituting a paternity action due to being misled by the defendant regarding facts necessary to cause the plaintiff to be aware of the right to institute such action, the doctrine of laches does not apply and (2) if a plaintiff does not institute a paternity action within a reasonable time after learning of the facts necessary to create awareness of the right to institute such action, then the doctrine of laches is available if the defendant can demonstrate that the delay worked to his detriment.

George M. Banker v. Anne F. Banker, No. 22166 (W. Va. May 17, 1996) (Cleckley, J.):

Reversing a divorce decree and remanding with respect to alimony and attorney fees, the Court held (1) under W. Va. Code § 48-2-15(e), a circuit may modify a divorce decree to include alimony even where the decree expressly denied alimony or failed to address the issue, overruling Savage v. Savage, 157 W. Va. 537, 203 S.E.2d 151 (1974); (2) when a party to a divorce neglects to assert a claim for alimony for an unreasonable and unexplained length of time to the prejudice of the other party, relief may be denied pursuant to the doctrine of laches; (3) for the doctrine of laches to bar an award of alimony, the passage of time is alone insufficient, rather the circuit court must consider the circumstances surrounding the delay and the nature of prejudice to the other party; (4) the factors to be considered in determining whether to award attorney fees in a divorce action include (i) the party's financial ability to pay his or her own fee, (ii) the beneficial results obtained by the attorney, (iii) the respective financial conditions of the parties, (iv) the effect of attorney fees on each party's standard of living, (v) the respective degree of fault in the deterioration of the marriage, and (v) the reasonableness of the attorney fee; and (5) the award of attorney fee rests within the sound discretion of the family law master and should not be disturbed on appeal absent an abuse of such discretion.

Diana Lynn nee Spears Carter v. Lonnie Elmer Carter, No. 22904 (W. Va. March 21, 1996) (Recht, J.): ___ W. Va. ___, 470 S.E.2d 193:

Affirming an order holding a mother in contempt for interference with the father's visitation rights, but remanding for a gradual resumption of unsupervised visitation, the Court held (1) a civil contempt order is reviewed generally under an abuse of discretion standard, its findings of fact under a clearly erroneous standard, and its conclusions of law under a de novo standard; (2) where there are allegations of sexual or other abuse of a child, the circuit court and family law master should weigh the risk of harm of supervised visitation or the complete deprivation of visitation if the allegations are false against the risk of harm of unsupervised visitation if the allegations are true; (3) in order to minimize the physical and psychological harm to the child, supervised visitation, if previously ordered, should be gradually phased out if it is determined that the allegations that supported supervision are not supported by credible evidence or that the noncustodial parent presently poses no threat of harm to the child; and (4) the best interest of the child are of paramount importance with regard to both visitation and custody.

Grant Preece v. Eva Preece, No. 22861 (W. Va. December 15, 1995) (Workman, J.): 195 W.Va. 460, 465 S.E.2d 917:

Concluding that the circuit court had insufficient information to make a determination that the terms of a property settlement agreement were fair and equitable, the Court held that use of the phrase, "[i]n all divorce actions," in W. Va. Code § 48-2-33, indicates that financial disclosure should occur in all divorce cases, and the existence of a separation agreement does not alleviate the necessity of complying with such requirement.

Barbara Graham v. Simon Graham, No. 22701 (W. Va. November 17, 1995) (Miller, J.): 195 W.Va. 343, 465 S.E.2d 614:

Affirming an order that invalidated a post-pendente lite change of beneficiary for an employment-related term life insurance policy, the Court held that a term life insurance policy obtained as an employment benefit during the marriage is marital property and the owner is foreclosed from removing the spouse as named beneficiary on such policy after the divorce proceedings are filed and a pendente lite order entered precluding disposition of marital assets.

Sheila L., on behalf of Ronald M.M., an infant v. Ronald P.M., No. 22794 (W. Va. October 27, 1995) (Cleckley, J.): 195 W.Va. 210, 465 S.E.2d 210:

Reversing an order giving full faith and credit to an Ohio custody decree, the Court held (1) a court may continue its jurisdiction under the Parental Kidnapping Prevention Act, if it has made a custody determination consistent with the provisions of 28 U.S.C. § 1738A(d), if it maintains jurisdiction under its law, and if either the child or a contestant continues to reside in the state; (2) a "custody determination" under the PKPA is a judgment, decree, or other order of a court providing for the custody or visitation of a child, including permanent, temporary, initial, and modified orders; (3) to assume emergency jurisdiction under the PKPA, (i) a court must have jurisdiction under its own law, (ii) the child must be physically present in the state, and (iii) the child must be either abandoned or in an emergency situation that necessitates action to protect the child from being subjected to or threatened with mistreatment or abuse; (4) unsubstantiated allegations of abuse or mistreatment are alone insufficient to invoke jurisdiction under the PKPA to permit entry or modification of a permanent custody order; (5) if emergency jurisdiction is based upon the unsubstantiated statements of a parent, additional evidence should be adduced as quickly as possible to affirm or negate the allegations and temporary jurisdiction should last only so long as the emergency exists or until a court that has jurisdiction to enter or modify a permanent custody award is apprised of the situation and accepts responsibility to ensure that the child is protected; and (6) emergency child custody matters should be among those cases given priority and resolved as quickly as reasonably feasible.

James Garland Casdorph, Jr. v. Shela Gail Casdorph, No. 22687 (W. Va. July 13, 1995) (Workman, J.): 194 W.Va. 490, 460 S.E.2d 736:

Where adult became disabled at age nineteen, the Court affirmed resurrection of a support obligation on the noncustodial parent, holding that a disabled adult's entitlement to financial support by a noncustodial parent is not determined solely by whether the disability occurred before or after the age of majority, but if can be concluded that the disabled person was never "emancipated" from his parent[s], a court may impose a duty of continued financial support.

Camilla M. Boyle and Charles E. Bradley v. Robert E. Boyle, No. 22564 (W. Va. June 16, 1995) (Fox, J.): 194 W.Va. 124, 459 S.E.2d 401:

Rejecting a third party's attempt to intervene in a divorce proceeding in order to enforce an option agreement, the Court held that although, R. Civ. P. 24 does not preclude intervention in divorce proceedings, intervention is appropriate only where the movant's interest outweighs the parties' interest in privacy and where alternative remedies would be inadequate.

Carlos James Burnside v. Jacquelyn Nagle Burnside, No. 22399 (W. Va. March 24, 1995) (Cleckley, J.): 194 W.Va. 263, 460 S.E.2d 264:

Where wife complained that her use of an inheritance to pay off a mortgage on the jointly-owned marital home did not convert such inheritance to marital property, the Court remanded for more specific findings of fact, holding that (1) a three-pronged standard of review is applied to appellate review of family law master recommendations adopted by the circuit court: (i) equitable distribution is subject to "abuse of discretion" review, (ii) factual findings are subject to "clearly erroneous" review, and (iii) conclusions of law are subject to "de novo" review; (2) the presumption of gift that arises when a spouse uses separate property to retire the mortgage of jointly-titled property is rebuttable only by clear, cogent, and convincing evidence that a gift was not intended or was the result of coercion, duress, or deception; and (3) the motivation or lack thereof for making a gift or an uncommunicated subjective state of mind are alone insufficient to rebut the presumption of marital gift under these circumstances.

Stephen L.H. v. Sherry L.H., No. 22084 (W. Va. March 6, 1995) (Cleckley, J.): 195 W.Va. 384, 465 S.E.2d 841:

Reinstating a family law master decision which determined that the father had sexually abused one daughter and probably sexually abused another daughter, the Court held (1) a family law master's findings of fact may be set aside by the circuit court only if determined to be "clearly erroneous;" (2) a family law master's application of the law to the facts may be set aside by the circuit court only if determined to be an "abuse of discretion;" (3) under the "clearly erroneous" standard, a family law master's findings of fact must be sustained by the circuit court even if it is inclined to make different findings or draw contrary inferences; (4) if a circuit court believes that a family law master failed to make essential findings of fact, it should remand the case with directions to the family law master to make such findings; (5) if a circuit court believes that a family law master's findings of fact are clearly erroneous, it may set aside such findings, however, a circuit court may not substitute its findings of fact merely because it disagrees with the family law master; and (6) a circuit court may reverse a family law master's legal conclusions if it determines that the relevant principles of law were misapplied to the facts.

David Lee White v. Janet C. Williamson, No. 22040 (W. Va. December 21, 1994) (Workman, J.): 192 W.Va. 683, 453 S.E.2d 666:

In a case involving the divorce of two practicing attorneys, the Court held (1) post-separation work on a case in which a contingency fee is recovered should be treated as separate property; and (2) rehabilitative alimony may be awarded to compensate one parent for loss of career advancement due to time at home caring for young children and/or to enable such parent to remain with the children until they begin school.

Dana Ruth Musick v. Lynn Allen Musick, No. 22344 (W. Va. December 15, 1994) (Workman, J.): 192 W.Va. 527, 453 S.E.2d 361:

Refusing to find a sexual relationship alone sufficient to disqualify an attorney from representing a divorce client, the Court held that although it is a better practice for attorneys not engage in sexual relations with any client in any type of case, because no existing provision of the Rules of Professional Conduct specifically precludes such relationship, sexual relations with a divorce client, in and of itself, is not disqualifying.

Pamela Katherine Henry v. Diana L. Johnson, Family Law Master of Mason County, and Howard Lee Henry, No. 22030 (W. Va. October 28, 1994) (Neely, J.): 192 W.Va. 82, 450 S.E.2d 779:

In a case effectively restricting the use of proffers of evidence at temporary divorce hearings involving questions of child custody, the Court held (1) a family law master should consider domestic violence when making an award of temporary custody and (2) a family law master should make an adequate record for review when making an award of temporary custody.

State of West Virginia ex rel. Gretchen Lewis Chafin v. Honorable Robert C. Halbritter, Special Judge of the Circuit Court of Mingo County, and H. Truman Chafin, No. 22104 (W. Va. July 21, 1994) (Workman, J.): 191 W.Va. 741, 448 S.E.2d 428:

In this prohibition proceeding, the Court held that exclusive use of a marital home may be temporarily awarded as an incident to child custody regardless of the home's status as separate property.

Sydney O. Metzner v. William R. Metzner, No. 21380 (W. Va. May 27, 1994) (Brotherton, J.): 191 W.Va. 378, 446 S.E.2d 165:

In an important case to lawyers involved in divorce proceedings, the Court held (1) when a contingency fee contract is executed during the marriage, it constitutes "marital property" within the meaning of W. Va. Code § 48-2-1(c)(1); (2) accounts receivable, such as unpaid attorney fees, are assets with a value that can be ascertained as of the date of separation, and are to be considered marital property for purposes of equitable distribution; (3) contingent fees for cases pending at the time of separation should be treated as marital property; (4) only that portion of a contingency fee representing compensation for work done during the marriage constitutes marital property, and (5) courts must retain continuing jurisdiction in order to determine the manner in which to effectuate an equitable distribution of contingency fees.

State of West Virginia ex rel. Ethel G. Erickson v. Honorable George Hill, Judge of the Circuit Court of Wood County, and Charles F. Erickson, Executor of the Estate of Charlie O. Erickson, No. 22197 (W. Va. May 26, 1994) (Neely, J.): 191 W.Va. 320, 445 S.E.2d 503:

Modifying a circuit court's order requiring a wife to disclose all of her assets having a value of $50 or more to require the wife to disclose all of her assets having a value of $500 or more, the Court held that the financial disclosure procedure in domestic relations cases should be as follows: (1) both parties should provide the asset, liability, and other relevant information required by Rule 11 of the Rules of Practice and Procedure for Family Law on the standard forms promulgated by the Court and (2) if this disclosure is deemed insufficient, the party seeking additional discovery should ask the family law master for discovery under Rule 81(a)(2) of the Rules of Civil Procedure.

Cleo A.E. v. Rickie Gene E. v. Amber Dawn E. and the West Virginia Department of Health and Human Resources, No. 21704 (W. Va. December 16, 1993) (Workman, C.J.): 190 W.Va. 543, 438 S.E.2d 886:

Where parents sought to stipulate to paternity of child, the Court reversed, holding that (1) the parties to a domestic relations proceeding cannot by stipulation agreed to bastardize children born during the marriage and (2) a child has a right to independent representation to establish paternity and support.

Rebecca White Ball (formerly Wills) v. Mark E. Wills, No. 21608 (W. Va. December 15, 1993) (Workman, C.J.): 190 W.Va. 517, 438 S.E.2d 860:

Where lawyer/father's annual income fluctuated considerably, the Court held that sole reliance upon his year-to-date income was insufficient for purposes of determining child support, but that the trial court should have required full financial disclosure and have reviewed his finances over a sufficient period of time to take into account such fluctuations.

Georgia Boarman v. Raymond T. Boarman, No. 21814 (W. Va. December 15, 1993) (Workman, C.J.): 190 W.Va. 533, 438 S.E.2d 876:

Remanding a child custody case for additional proceedings, including the involvement of child protective services, the Court held (1) Rule 34(b) of the Rules of Practice and Procedure for Family Law provides that where there have been allegations of abuse and neglect in a divorce proceeding, the family law master or circuit judge may order an investigation or home study of one or both of the parties; (2) Rule 34(b) of the Rules of Practice and Procedure provides that when a family law master or circuit judge finds that a child has been neglected or abused, the family law master or the circuit judge shall report the abuse in accordance with the provisions of W. Va. Code 49-6A-2; and (3) when serious allegations of child abuse and neglect are made in a custody case, the family law master or circuit judge should direct the Department of Health and Human Resources to intervene and conduct home studies.

Mary Nelle Wood v. Craig Herbert Wood, Jr., No. 21764 (W. Va. December 10, 1993) (Workman, C.J.): 190 W.Va. 445, 438 S.E.2d 788:

Addressing several issues related to alimony and child support, the Court held (1) when a circuit court fails to properly apply the child support guidelines, an award on appeal shall be made retroactive to the date of the petition; (2) when the circumstances warrant, rehabilitative alimony may be extended, modified, or converted to permanent alimony; (3) in order to determine when circumstances warrant a change in rehabilitative alimony, the circuit court should consider (i) the recipient's potential work skills, (ii) employment conditions in the recipient's community, (iii) the recipient's age, health, and skills, and (iv) the recipient's inability to fulfill the expectations of the initial award; (4) once the automatic stay is lifted in a bankruptcy proceeding, a circuit court may award attorney fees; (5) in order to make an award of attorney fees nondischargeable under 11 U.S.C. § 523(a)(5), the circuit court should designate such fees as in the nature of support, alimony, or maintenance; and (6) attorney fees are in the nature of support, alimony, or maintenance when incurred in an effort to obtain child support, alimony, or maintenace.

John D.K. v. Polly A.S., No. 21777 (W. Va. November 23, 1993) (Miller, J.): 190 W.Va. 254, 438 S.E.2d 46:

Clarifying several issues related to domestic relations procedure, the Court held (1) in the absence of a statutory period of limitation, a circuit court may review a family law master's recommended order even if no timely exceptions are filed; (2) a circuit court or family law master may order a home study be performed to investigate allegations of abuse and neglect in a domestic relations proceeding; and (3) it is mandatory, pursuant to W. Va. Code § 49-6A-2, for any circuit judge, family law master, or magistrate having reasonable cause to suspect abuse or neglect to file an immediate report with the division of human services.

State of West Virginia ex rel. Donna Ann Hendricks v. Honorable John S. Hrko, Judge of the Circuit Court of Wyoming County, and James Hendricks, Jr., No. 21567 (W. Va. July 22, 1993) (Miller, J.): 189 W.Va. 674, 434 S.E.2d 34:

Elucidating the procedure for disqualification of a family law master, the Court held (1) a motion for disqualification of a family law master pursuant to R. P. Fam. L. 40 and 41 must state facts and reasons supporting the disqualification and must be accompanied by a certificate of the attorney that it is made in good faith; (2) a motion for disqualification of a family law master pursuant shall be filed no later than 21 days in advance of any scheduled hearing, except upon good cause shown; (3) upon the filing of a motion for disqualification of a family law master, a copy shall be forwarded to the circuit judge, together with any relevant information, with the family law master's recommendation concerning disposition of the motion; (4) upon receipt of the motion for disqualification from the family law master, the circuit judge shall either grant the motion, deny the motion, or hold an evidentiary hearing; (5) a circuit court's decision on a motion to disqualify a family law master will be affirmed on appeal absent an abuse of discretion; and (6) during the pendency of a disqualification motion, the family law master shall act no further.

Clayton E. Higginbotham v. Juanita J. Higginbotham, No. 21215 (W. Va. June 28, 1993) (Miller, J.): 189 W.Va. 519, 432 S.E.2d 789:

Where circuit judge modified family law master's findings of fact after conducting a series of hearings when the family law master hearing tapes were found to be inaudible, the Court reversed, holding (1) W. Va. Code § 48A-4-10(c) limits a circuit judge's ability to alter the family law master's findings and conclusions unless they fall within one of the six categories, and (2) W. Va. R. Civ. P. 52(a) requires specific findings of fact and conclusions of law by a circuit court when altering the findings and conclusions of a family law master.

Michael L. Robinson v. Debra Catherine Robinson McKinney, No. 21549 (W. Va. June 24, 1993) (McHugh, J.): 189 W.Va. 459, 432 S.E.2d 543:

Where parties agreed to change custody of their child without court approval, the Court held that (1) the ten-year statute of limitations of W. Va. Code § 38-3-18 and not the doctrine of laches applies to enforcement of a child or spousal support order, and (2) an agreement to modify or terminate child support is ordinarily effective upon upon entry of an order pursuant to W. Va. Code § 48-2-15(3).

Mildred Walden v. Jay M. Hoke and Fredrick G. Staker, III, No. 21277 (W. Va. April 23, 1993) (Brotherton, J.): 189 W.Va. 222, 429 S.E.2d 504:

Affirming the dismissal of a malpractice action premised upon joint representation in an earlier divorce proceeding in which the trial court rejected an identical attack on a property settlement agreement, from which the plaintiff did not appeal, the Court held that although it is improper for a lawyer to represent both the husband and wife at any stage of a divorce proceeding and to prepare an answer for the defendant even if the divorce is simple and uncontested, a litigant cannot relitigate an issue in a malpractice action previously decided in the earlier proceeding from which the alleged malpractice arose.

State of West Virginia ex rel. Gail Treadway, etc., et al. v. Richard McCoy, etc., et al., No. 21460 (W. Va. April 8, 1993) (Neely, J.): 189 W.Va. 210, 429 S.E.2d 492:

Reversing an award of custody to a child's half-sister following the murder of the child's mother by the child's father, rather than awarding custody of the child to her foster parents, who had cared for the child for almost three years since the age of ten months, the Court held that where no biological parent is involved, the best interests of the child dictate preserving important relationships in the child's life.

Kenneth R. Simmons v. Loretta L. Comer, No. 21459 (W. Va. April 2, 1993) (Miller, J.): 190 W.Va. 350, 438 S.E.2d 530:

Reversing a custody award, but permitting an award of visitation rights, to a man who a child's mother erroneously alleged was the father of her illegitimate child, the Court held that (1) where a biological mother is married to the putative father or, although not married, advises him that he is the biological father and he marries her, he may raise the issue of equitable estoppel to assert a right to custody of the child if he can demonstrate that he has developed a caring relationship with the child such that he has become a functioning father; (2) under such circumstances, a functioning father may have the benefit of the primary caretaker presumption of the circumstances warrant; (3) in order to raise the issue of equitable estoppel, a nonbiological father must show a caring parental relationship with the child, including financial, emotional, and psychological support, and that such relationship was initially encouraged by the biological mother and was not merely temporary in nature; and (4) where a biological mother advises a putative father that he is the biological father of her child, but he does not marry her, he may not raise the issue of equitable estoppel or primary caretaker presumption to secure custody of the child, but may secure visitation rights if he can establish that he is the child's functioning father.

Elizabeth Ellen Phillips v. Harold Phillips, No. 21218 (W. Va. December 16, 1992) (McHugh, C.J.): 188 W.Va. 692, 425 S.E.2d 834:

In a case involving a parent's decision to seek sole custody after initially agreeing to joint custody, the Court held that, under such circumstances, the primary criterion is not whether a change in circumstances has occurred, but rather, what will be in the best interests of the child and the mutual ability of the parents in reaching shared decisions with respect to that interest.

State of West Virginia ex rel. Patricia Ann Stutler v. Honorable Clarence L. Watt, Judge of the Circuit Court of Putnam County, and Brady Ralph Paxton, No. 21344 (W. Va. December 14, 1992) (Workman, J.): 188 W.Va. 426, 424 S.E.2d 771:

Rejecting a mother's contention that wage withholding could be instituted when the number of days her husband's child support payments were late exceeded thirty, the Court held that in order to institute wage withholding pursuant to W. Va. Code § 48-2-15b(2), the obligor must have failed to pay an amount equal to the support payable for one support period.

Anna Marie Jeffrey v. Mark Jeffrey, No. 20922 (W. Va. December 14, 1992) (Workman, J.): 188 W.Va. 476, 425 S.E.2d 152:

Where West Virginia divorce decree did not provide for child support, which was later awarded pursuant to a Tennessee order, the Court reversed a trial court decision that it lacked jurisdiction to modify the Tennessee support decree, holding that the entry of a URESA order in a foreign state does not prevent the initiating state from exercising jurisdiction in a subsequent petition to modify.

Erin Lufft, now Erin Campbell v. James Lufft, No. 20918 (W. Va. November 25, 1992) (Brotherton, J.): 188 W.Va. 339, 424 S.E.2d 266:

Reversing a family law master's decision to approve a change of a child's surname to that of her natural father to whom the natural mother was not married at the time of the child's birth, the Court held that when a name change involves a minor child, there must be a showing by clear and convincing evidence that the proposed change serves the child's best interests.

State of West Virginia ex rel. Lora Dillon v. Hon. L. D. Egnor, Judge of the Circuit Court of Cabell County, and Robert K. Means, in his official capacity as Family Law Master for Cabell County, No. 21296 (W. Va. October 23, 1992) (Miller, J.): 188 W.Va. 221, 423 S.E.2d 624:

Clarifying divorce procedure in all cases, but especially those involving pro se litigants, the Court held (1) a circuit judge is authorized, pursuant to W. Va. Code § 48A-4-1(i), to refer divorce cases to a family law master for hearing, except in uncontested cases or where child custody or support is not involved and a written property settlement agreement has been signed; (2) a family law master is required, pursuant to W. Va. Code § 48A-4-4(b), to submit a recommended order within ten days following the close of evidence; (3) all recommended orders shall include, pursuant to W. Va. Code § 48A-4-4(e), findings of fact and conclusions of law on all material issues of fact, law, or discretion, appearing on the record, as well as the appropriate sanction, relief, or denial thereof; (4) where a circuit court agrees with the recommended order in cases involving pro se litigants, the judge may endorse the recommended order or may issue a brief order incorporating the findings and conclusions by reference; (5) where a circuit court disagrees with the recommended order, the judge may issue an order identifying alternative findings and conclusions, but incorporating by reference the approved portions of the recommended order; (6) the family law master, not unrepresented litigants, has the obligation of preparing the recommended order; and (7) the circuit court, not unrepresented litigants, has the obligation of preparing the final order.

Darlene Belcher and Melissa Arnold v. Mary Terry, Acting Director of the Child Advocate Office, etc., et al., No. 20530 (W. Va. July 16, 1992) (Workman, J.): 187 W.Va. 638, 420 S.E.2d 909:

Addressing a problem with child support obligors' seeking employment for which they are paid in cash in order to avoid wage withholding, the Court held (1) W. Va. Code § 48A-5-3(o) makes it a misdemeanor for an employer to knowingly and willingly conceal income being paid to a child support obligor in order to avoid wage withholding; (2) an employer is liable to the obligee for any amount of child support which the employer fails to withhold from the obligor's wages due to an agreement between the employer and the obligor for cash payments in order to avoid such withholding; (3) in order to recover from an employer, an obligee must present clear and convincing evidence that the cash payments were made in order to avoid wage withholding for the obligor; (4) an employer can be liable to an obligee for punitive damages when the employer enters into an agreement with an obligor for cash payments in order to avoid wage withholding; (5) an obligee has a separate cause of action, independent of the Child Advocate Office, against an employer and obligor who enter into an agreement for cash payments in order to avoid wage withholding; and (6) the Child Advocate Office has a cause of action against an employer and obligor who enter into an agreement for cash payments in order to avoid wage withholding.

Mary D. v. Honorable Clarence Watt, Judge of the Circuit Court of Putnam County, and George D., No. 20453 (W. Va. May 29, 1992) (McHugh, C.J.): 190 W.Va. 341, 438 S.E.2d 521:

Intervening in a case where a mother challenged a trial court's order of supervised visitation for the father, who had been acquitted of sexual abuse of the children, the Court held (1) where sexual abuse is alleged in a divorce proceeding, the case may be heard directly by the circuit court without reference to a family law master; (2) where sexual abuse is alleged in a divorce proceeding, supervised visitation may be ordered only where there is a finding that the allegation of sexual abuse is supported by "credible" evidence and where the risk of harm to the child is outweighed by the risk of harm to the alleged abuser; (3) supervised visitation may be conditioned upon treatment of the alleged abuser; (4) where allegations of sexual abuse raised in a divorce proceeding are supported by "credible" evidence, the matter should be reported by the circuit judge or the family law master to the appropriate law enforcement agency or prosecutor; (5) where the alleged abuser has been prosecuted, the transcript of the criminal trial must be made part of the record in the divorce proceeding; and, (6) persons appointed to supervise visitation should have contact with the child prior to visitation in order to reduce any trauma associated with the visitation.

State of West Virginia ex rel. Robert S. Sullivan v. Honorable Clarence L. Watt, Judge of the Circuit Court of Putnam County, and Ruth D. Sullivan, No. 20921 (W. Va. May 29, 1992) (Miller, J.) 187 W.Va. 447, 419 S.E.2d 708:

In a case establishing certain procedural guidelines for processing domestic relations cases the Court held (1) the party aggrieved by a family law master's recommendation has the burden of scheduling a hearing before the circuit judge on exceptions to the recommendation, but it may be set by either party or waived by both parties; (2) after review the record, a circuit judge may determine that a hearing on exceptions to a family law master's recommendation is not warranted; (3) once properly submitted, a circuit judge has 10 days to rule on exceptions to a family law master's recommendation; (4) if a party desires a transcript of hearings before the family law master, that party must make arrangements to procure and pay for the transcript; (5) if a party desires to proceed upon exceptions without a transcript, the petitioner's attorney may instead submit a verified statement of facts; (6) exceptions to a family law master's recommendations may be reviewed without the transcription of hearings before the family law master, and instead upon only the audiorecordings of the hearings; (7) where portions of an audiorecording are missing or inaudible, a party may utilize Rule 80(e) of the Rules of Civil Procedure permitting a "statement of evidence in lieu of transcript;" and (8) a circuit judge may remand to the family law master any case in which the recommendation is deficient with respect to evidentiary matters, but must provide directions with respect to the factual inadequacies.

State of West Virginia ex rel. Naoma Lee Smith v. Honorable W. Robert Abbott, Judge of the Circuit Court of Fayette County, and Christopher Duke King, No. 20854 (W. Va. May 15, 1992) (Brotherton, J.): 187 W.Va. 261, 418 S.E.2d 575:

Where natural father waited eight years to challenge adoption proceedings, the Court held that where a natural parent fails to exercise his or her statutory right to contest an adoption performed without consent, the equitable doctrine of laches may apply to bar any attempt to invalidate the adoption order.

Virginia Ann Sly (Topping) v. James Howard Sly, No. 20167 (W. Va. April 3, 1992) (McHugh, C.J.): 187 W.Va. 172, 416 S.E.2d 486:

Affirming an order which applied a portion of the husband's mortgage payments to his child support obligation, the Court held that payments for such items as rent, mortgage, utilities, insurance, taxes, or other expenses reasonably related to the maintenance of a marital domicile can be designated alimony, child support, or equitable distribution in such proportion as the trial court deems correct, and that only if the trial court's order does not designate such payments will they be deemed alimony.

Lewis H. Rexroad v. Constance L. Rexroad, No. 20154 (W. Va. February 7, 1992) (Miller, J.): 186 W.Va. 696, 414 S.E.2d 457:

Where husband received substantial, regular overtime pay, the Court held that, in calculating the amount of spousal or child support, consideration may be given to overtime pay ordinarily obtained. Where wife refused to communicate with husband for long periods, with the last silent treatment lasting 9 months, the Court held that W. Va. Code § 48-2-15(i) bars alimony only where the party (1) has committed adultery; (2) has been convicted of a felony; and (3) has abandoned or deserted the other spouse for six months, but in other situations where fault is considered in awarding alimony, the court or master shall consider and compare the fault or misconduct of either or both of the parties and the effect of such fault or misconduct on the deterioration of the marital relationship.

Margie Isabell Hardy v. Larry Vernon Hardy, No. 19936 (W. Va. December 19, 1991) (Brotherton, J.): 186 W.Va. 496, 413 S.E.2d 151:

Where wife sought equitable distribution of husband's personal injury award, the Court held (1) to the extent that its purpose is to compensate an individual for physical and/or emotional damages, a personal injury award constitutes the separate property of the injured person; (2) to the extent that its purpose is to compensate an individual for economic damages, such as lost earnings and medical expenses, a personal injury award constitutes marital property; (3) to the extent that its purpose is to compensate a spouse for loss of consortium, a personal injury award constitutes the separate property of the spouse; and (4) the burden of proof lies upon the party seeking a nonmarital classification of a personal injury award.

Mary B. Holstein v. Elborn Holstein, No. 19835 (W. Va. December 19, 1991) (Miller, C.J.): 186 W.Va. 385, 412 S.E.2d 786:

Where trial court awarded alimony of $1 per year to wife who had suffered from breast cancer which may effect her ability to obtain health insurance, the Court affirmed, holding that a circuit court has authority to award nominal alimony to reserve jurisdiction where there is uncertainty about the spouse's future earnings, financial condition, or health.

Betty Jo Summers, n/k/a Betty Jo Kidd v. Samuel David Summers, Jr., No. 19956 and Betty Jo Summers, n/k/a etty Jo Kidd v. Samuel David Summers, Jr., No. 19896 (W. Va. December 18, 1991) (Workman, J.): 186 W.Va. 635, 413 S.E.2d 692:

In an extension of its decision in Gangopadhyay v. Gangopadhyay, 184 W.Va. 695, 403 S.E.2d 712 (1991), the Court held that just as a pre-decree property settlement agreement must be submitted for judicial approval, a post-degree property settlement agreement, whether oral or written, must be presented to the family law master and the circuit court in order to determine whether the agreement is fair, reasonable, and not procured through improper means.

Erma Farley v. Max Farley, Sr. and State of West Virginia ex rel. Department of Health and Human Resources v. Max Farley, Sr., No. 19902 (W. Va. December 12, 1991) (Neely, J.): 186 W.Va. 263, 412 S.E.2d 261:

Affirming a credit against a support arrearage pursuant to a wife's receipt of social security disability benefits, the Court held (1) social security benefits paid to dependents should be credited against the recipient/obligor's support obligation; (2) to receive credit for social security benefits paid to dependents, the recipient/obligor must make an appropriate motion for such credit; and (3) a court may grant retroactive credit for social security benefits paid to dependents when the recipient /obligor has acted in good faith, there were no other assets available to pay support, and there are no other circumstances militating against awarding a credit.

Estaline Charlton v. Howard S. Charlton, Jr., No. 19763 (W. Va. December 6, 1991) (Miller, C.J.): 186 W.Va. 670, 413 S.E.2d 911:

Reversing a family law master's application of the unjust enrichment doctrine where the husband was determined to be at fault for the dissolution of the marriage, the Court held that although marital fault can be considered in awarding spousal support, it may not be considered in determining the division of marital property. In a clarification of its Whiting opinion, the Court held that where a spouse inherits property and entrusts the investment of that property to the other spouse, and the property is not used for marital purposes, that the property is titled in the joint names of the spouses will not convert it to marital property.

Susan Carolyn Pyle v. Hon. A.L. Sommerville, Circuit Judge of Webster County, Battle Ridge Coal Co., and Michael Stevenson Pyle, No. 20418 (W. Va. November 20, 1991) (Neely, J.) (as modified): 186 W.Va. 177, 411 S.E.2d 696:

Reversing a trial court's injunction against income withholding in favor of other measures to secure payment of support, the Court held that W. Va. Code § 48-2-15b provides for automatic income withholding of child support payments without further court action when one of five statutory criteria is met, and a circuit court may only issue an order staying withholding when it was commenced pursuant to either of the first two statutory criteria.

Wanda June McGraw v. William Raymond McGraw, No. 19758 (W. Va. November 1, 1991) (Neely, J.): 186 W.Va. 113, 411 S.E.2d 256:

Resolving a dispute concerning the status of railroad retirement benefits, the Court held that although the Railroad Retirement Act, 45 U.S.C. § 231m, precludes considering as marital property the basic railroad retirement annuity, which is equivalent to social security benefits, the Railroad Retirement Solvency Act, 45 U.S.C. § 231m(b) (2), allows any supplemental railroad annuity to be considered as divisible marital property.

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

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

Ronald L. Wyatt, Sr. v. Kimberly Ann Wyatt, No. 19787 (W. Va. July 16, 1991) (Miller, C.J.): 185 W.Va. 472, 408 S.E.2d 51:

Where property settlement agreement waived child support during period of father's education, the Court set aside the agreement, and ordered the repayment of AFDC benefits paid during the period, holding that the duty of a parent to support a child cannot be waived or contracted away, and W. Va. Code § 48A-2-8(a) (1) does not abrogate this duty, but provides that the parties must still enter into "an agreement which provides for the custody and support of the child or children . . . ."

Vallie Rich v. Donald K. Rich and Tammy J. Rich, No. 19675 (W. Va. May 24, 1991) (Workman, J.): 185 W.Va. 148, 405 S.E.2d 858:

Where father conveyed certain real estate to his second wife two weeks after entry of an order finding him to be in arrears on his child support payments, the Court held that an interspousal transfer of property in close proximity to the occurrence of a substantial child support obligation may constitute evidence of fraudulent intent under the Uniform Fraudulent Transfers Act, W. Va. Code § 40-1A-1 to -12, and may result in the transfer being set aside.

Janice M. Kinder v. Honorable E. Lee Schlaegel, Jr., Judge of the Circuit Court of Boone County, and Carlos M. Kinder, No. 20029 (W. Va. April 25, 1991) (Brotherton, J.): 185 W.Va. 56, 404 S.E.2d 545:

Where a mother sought support for her handicapped son, who was over the age of eighteen, the Court held that where an adult child is incapable of supporting himself or herself because of physical or emotional disabilities, it is within the jurisdiction of the family law master or circuit court to award child support.

Josephine J. Holst v. Hon. A. Andrew MacQueen, No. 19911 (W. Va. March 15, 1991) (Neely, J.): 184 W.Va. 620, 403 S.E.2d 22:

Affirming a trial court's action, the Court held that bifurcation is proper in a divorce proceeding where there is a compelling reason to separate the divorce issue from the property issues, and neither party will be prejudiced by the bifurcation. The Court further held, however, that bifurcation will not preclude the introduction of evidence of fault in the spousal support phase of the proceedings, even if the divorce has been granted on no-fault grounds.

Ira Gangopadhyay v. Nirmal K. Gangopadhyay, No. 19608 (W. Va. February 13, 1991) (Miller, C.J.): 184 W.Va. 695, 403 S.E.2d 712:

Reversing enforcement of a oral separation agreement tendered to the family law master on the date of the final hearing, the Court, expressing a clear preference for written agreements, held that where an oral separation agreement is tendered, an appropriate inquiry must be conducted to determine (1) whether the parties understand the terms of the oral agreement; (2) whether the oral agreement has been reached voluntarily without coercion; and (3) whether the terms of the agreement, in light of a full disclosure of the financial status of the parties, are fair and equitable.

Nancy Darlene M. v. James Lee M., No. 19513 (W. Va. December 18, 1990) (McHugh, J.): 184 W.Va. 447, 400 S.E.2d 882:

Where putative father's child support arrearage of $17,000 was affirmed by the trial court, but payment of which was reduced to $10 per month after a California court determined him not to be the father, the Court reversed, holding that because the adjudication of paternity was part of the prior West Virginia divorce decree and was, therefore, res judicata as to the husband and wife in any subsequent proceeding, the provisions of the Revised Uniform Reciprocal Enforcement of Support Act, authorizing an adjudication of paternity in certain circumstances, did not apply.

David L. Wyant v. Betsy G. Wyant, No. 19263 (W. Va. December 17, 1990) (Brotherton, J.): 184 W.Va. 434, 400 S.E.2d 869:

In order to assist appellate review of disputes involving the adequacy of child support awards, the Court held that family law masters and/or circuit judges must include as part of the record the worksheets reflecting the actual calculations pursuant to the child support guidelines. Finding improper the trial court's consideration of the mother's two college degrees in awarding only rehabilitative alimony, the Court held that where the supporting spouse, an attorney, had an income greater than his dependent spouse, a teacher, which his wife could not reasonably hope to equal, rehabilitative alimony may have been insufficient because of her status as custodian of the minor children and her expressed intention to be a full-time homemaker rather than a member of the work force. On a related issue, the Court held that even though a custodial parent may currently possess excellent job skills, spousal support should not been limited to rehabilitative alimony without considering five factors: (1) the dependent spouse's position as a homemaker at the time of the divorce; (2) the age of the children; (3) the parties' current and potential income; and (4) the benefit of the custodial parent remaining a full-time homemaker.

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

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

Luis E. Soriano v. Mayra M. Soriano, No. 19407 (W. Va. December 12, 1990) (McHugh, J.): 184 W.Va. 302, 400 S.E.2d 546:

Clarifying its holding in Cross v. Cross, 178 W.Va. 563, 363 S.E.2d 449 (1987), that the income tax child dependency exemption may be allocated to the non-custodial parent, the Court held that when such allocation occurs, the trial court should set forth its reasons in the child support order in order to clearly demonstrate that such allocation is more equitable.

Donna Jo Scott, individually, and as next friend for Donald Benjamin Wagoner and Luke Harmon Wagoner v. William L. Wagoner, Executor of the Estate of Timothy Allan Wagoner; Lou Ann Wagoner, and Lloyd Winters, No. 19527 (W. Va. December 12, 1990) (McHugh, J.): 184 W.Va. 312, 400 S.E.2d 556:

Where mother sought continued child support from father's estate after he was killed by his second wife's lover, the Court overruled Robinson v. Robinson, 131 W. Va. 160, 50 S.E.2d 455 (1948), holding that if compelling considerations are present, a court has the authority, under W. Va. Code § 48-2-15(e), to enforce a child support obligation as a lien against the deceased obligor's estate.

Louise Maloy Hamstead v. Richard Elbert Hamstead, No. 19529 (W. Va. December 7, 1990) (Brotherton, J.): 184 W.Va. 272, 400 S.E.2d 280:

Expanding upon its recent decision in Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990), the Court held that when separate property is exchanged for separately titled property, which is not comingled with marital property, the property acquired as a result of the exchange is separate property.

Antonia Jeane Gardner v. Wayne B. Gardner, No. 19616 (W. Va. December 6, 1990) (Workman, J.): 184 W.Va. 260, 400 S.E.2d 268:

Modifying its holding in Lambert v. Miller, 178 W.Va. 224, 358 S.E.2d 785 (1987), the Court held that an unanticipated change of circumstances justifying modification of a child support order includes (1) inflation, (2) maturation, (3) shelter, and (4) transportation. For cases arising after July 1, 1990, the Court held that an alternative reason for modifying a child support order includes a showing that the support award is not within 15% of the child support guidelines. Finally, with respect to calculation of child support payments after a determination of change in circumstances, the Court held that the child support guidelines must be adhered to, unless there is a written finding that their application would be unjust, inappropriate, waived, or contrary to the best interests of the children or the parties.

Colene C. McCormick v. Vondon Ray McCormick, Jr., et al., No. 19484 (W. Va. November 29, 1990) (Neely, C.J.): 184 W.Va. 69, 399 S.E.2d 469:

Where wife brought declaratory judgment action against husband and his business partners in order to determine the validity of a buy-sell agreement, the Court held that a declaratory judgment action brought by a divorcing spouse to challenge the validity or construction of business contracts that threaten to impair the value of marital property will not be dismissed solely on the grounds that a separate divorce proceeding is pending.

Judith R. v. Honorable John Hey, Judge of the Circuit Court of Kanawha County, No. 19212 (W. Va. July 26, 1990) (Workman, J.): 185 W.Va. 117, 405 S.E.2d 447:

In reversing a circuit court's order that a mother cease her unmarried cohabitation or lose custody of her child, the Court reaffirmed its holdings in S.H. v. R.L.H., 169 W. Va. 550, 289 S.E.2d 186 (1982) and J.B. v. A.B., 161 W. Va. 322, 242 S.E.2d 248 (1978)

Martha Louise Goode v. Carl Edward Goode, No. 19439 (W. Va. July 20, 1990) (McHugh, J.): 183 W.Va. 468, 396 S.E.2d 430:

Although the Court, in this certified question proceeding, restated this State's nonrecognition of common-law marriage, it held that a court may order a division of property acquired by unmarried cohabitants who have considered and held themselves out to be husband and wife, based upon the purpose, duration, and stability of the relationship and the expectation of the parties, as long as such division does not adversely affect the rights of a legitimate spouse or children of either party.

Robert Bettinger v. Marie Militzer Bettinger, No. 19382 (W. Va. July 17, 1990) (Miller, J.): 183 W.Va. 528, 396 S.E.2d 709:

In a complex case raising an issue regarding the valuation of a professional corporation for purposes of equitable distribution, the Court held: (1) although family law masters have discretion in making value determinations, they are not free to reject competent expert testimony which was unrebutted, and (2) although a buy-sell agreement in a close corporation setting the stock value should not be considered binding for purposes of equitable distribution since such agreements may be manipulated by the shareholders to reflect an artificially low value, such valuation should be weighed along with other factors in making a determination as to the value of such stock. In reversing a reduction in the marital share of a professional corporation based upon the theoretical tax liability if the shareholder sold his interest, the Court held although the Internal Revenue Code specifically exempts from federal and state taxes the transfer of property between spouses which arise incident to a divorce, if it is ascertained that a future sale will actually occur as a result of an equitable distribution of marital property, the tax implications of such sale to a third party may be considered. In affirming its prior holding in Cross v. Cross, 178 W.Va. 563, 363 S.E.2d 449 (1987), the Court held that even where the existence of substantial nonliquid assets dictate installment payments for a spouse's share, interest should be paid at the going rate in the absence of some special hardship factor shown by the obligor. The Court further held that the valuation of a vested defined contribution plan for equitable distribution purposes is the present actual value of the contributions made and the accumulated earnings thereon, which is not to be discounted to present value. In clarifying the method of calculating child support pursuant to the child support guidelines, the Court directed compliance with a two-step process: first, "primary child support," covering the essential needs of the children, must be calculated, and second, a "standard of living adjustment," must be calculated, based upon defined percentages for the number of children. With respect to adherence to the child support guidelines in cases where the obligor has discretionary monthly income above $6,000 or both parents have combined discretionary monthly income above $8,000, the Court held that a decision not to follow such guidelines must be accompanied by an explanation of such decision. Finally, with respect to the payment of fees and costs, the Court held that W. Va. Code § 48-2-13(a) (4) permits the award of attorney and expert witness fees during the course of litigation to spouses who are unable to pay such fees.

Harry J. Whiting v. Evelyn L. Whiting, No. 19049 (W. Va. July 17, 1990) (Miller, J.): 183 W.Va. 451, 396 S.E.2d 413:

In a comprehensive discussion of the law of equitable distribution in West Virginia, the Court set forth a three-step process: (1) classification of property as marital or separate: (2) valuation of the marital property and (3) division of the marital property. The Court further held that, in the absence of an agreement, both the family law master and the circuit court must make factual findings on each of these three steps. Granted the statutory preference for classification of property as marital, the Court held that where one spouse transfers title of separate property into the joint names of both spouses, such as the deposit of separate funds into a joint bank account, a rebuttable presumption of gift to the marital estate arises. Finally, although the Court recognized that property may be part-marital and part-separate, such as when the value of separate property is increased by the expenditure of marital resources, if such property is jointly titled, the presumption of gift, unless rebutted, may convert the entire property to marital for purposes of equitable distribution.

Thomas A. Loudermilk v. Carol Maxine Loudermilk, No. 19367 (W. Va. July 12, 1990) (Neely, C.J.): 183 W.Va. 616, 397 S.E.2d 905:

In modifying its "no joint custody without agreement" rule of Lowe v. Lowe, 179 W.Va. 536, 370 S.E.2d 731 (1988), the Court held that it is permissible to award legal custody to one parent, but to allow alternate week visitation to the noncustodial parent, where: (1) there is no primary caretaker before divorce; (2) both parents are fit; and (3) both parents live close to one another. On an unrelated issue, the Court affirmed the trial court's designation as marital property a lot conveyed jointly to the parties by the husband's grandmother, even though his wife transferred her interest to him by deed in exchange for his agreement to a divorce, holding that for a transfer of marital property from one spouse to another to convert such a property to separate, there must be proof that the property was intended as an irrevocable gift, with the burden of such proof on the spouse claiming the gift. Finally, in an important issue regarding the treatment of social security contributions for purposes of equitable distribution, the Court held that the Social Security Act effectively prohibits contributions to individual accounts to be included as part of marital property subject to equitable distribution.

Sara Escudero v. Honorable Patrick G. Henry, III, Judge of the Thirty-First Judicial Circuit, and Marc J. Sharp, No. 19637 (W. Va. July 12, 1990) (Neely, C.J.): 183 W.Va. 370, 395 S.E.2d 793:

Even though a child and his mother had resided in Kentucky for over sixteen months following entry of a custody decree in West Virginia, the Court held that the decretal court was entitled to retain jurisdiction if: (1) its initial decree was consistent with the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction Act; (2) its jurisdiction to modify its initial decree continues under the UCCJA; (3) its long involvement has made substantial evidence available concerning the child's present or future care, protection, training and personal relationships; and, (4) the West Virginia litigant has substantial interest in having it retain jurisdiction.

State of West Virginia ex rel. Division of Human Services by Mary C.M., Individually and as its Assignee v. Benjamin P.B., No. 19492 (W. Va. June 28, 1990) (McHugh, J.): 183 W.Va. 220, 395 S.E.2d 220:

Although an earlier paternity action was dismissed with prejudice by the mother, the Court held that such dismissal did not preclude the child, under the principle of res judicata, from bringing a second paternity action over a decade later where the child was neither a party to the original action nor represented by counsel or a guardian ad litem.

State of West Virginia ex rel. Department of Health and Human Resources, Child Advocate Office, Division of Income Maintenance, on Behalf of Emma Mae West v. West Virginia Public Employees Retirement System, a public corporation, No. 19606 (W. Va. May 23, 1990) (Neely, C.J.): 183 W.Va. 39, 393 S.E.2d 677:

In confirming the right of child advocate office to withhold public employees retirement benefits in order to satisfy a husband's spousal support obligation, the Court held the Legislature intended the withholding provisions of the Family Obligations Act of 1986, W. Va. Code § 48A-1-3(19), to supersede the provisions of the Public Employees Retirement Act of 1961, W. Va. Code § 5-10-46, which exempt pension benefits thereunder from legal process.

Jerri T. Warner v. Glenn Dice Warner, No. 19039 (W. Va. May 19, 1990) (Workman, J.): 183 W.Va. 90, 394 S.E.2d 74:

Where wife admittedly forged husband's signature to promissory note and later abandoned the marital home to reside with a man with whom she had been engaging in an adulterous relationship, then claimed that a property settlement agreement, which she executed against the advice of independent counsel, was the product of duress created by her husband's threats of criminal prosecution and exposure of her affair, the trial court's refusal to invalidate such agreement was affirmed by the Court, holding that property settlement agreements should not be invalidated on the ground of procurement by duress unless established by clear and convincing evidence.

In the Interest of: Brandon L.E., No. 19429 (W. Va. April 18, 1990) (Workman, J.): 183 W.Va. 113, 394 S.E.2d 515:

Where a maternal grandmother, who had been granted temporary custody by a Florida court, fled to West Virginia prior to entry of a Florida decree awarding custody of her six-year-old grandson to his natural father, with whom he had little contact prior to entry of the Florida decree, which decree was later affirmed by a North Carolina court, the state in which the natural father resided, the Court held that the Uniform Child Custody Jurisdiction Act grants jurisdiction to not only the original custody court, but to any other court which can properly determine what is in the "best interest of the child." In remanding to the trial court for a determination of the best interest of the child, the Court held that where a child has resided with an individual other than a natural parent for a significant period of time such that the non-parent becomes the "psychological parent," during a period of time when the natural parent failed to exercise a right of visitation, the child's environment should not be disturbed without a clear showing of significant benefit.

Wanda Seay v. Honorable Rudolph J. Murensky, Judge of the Circuit Court of McDowell County, No. 19567 (W. Va. April 12, 1990) (Neely, C.J.): 182 W.Va. 752, 391 S.E.2d 902:

Where a circuit judge refused to sign a divorce decree because the husband failed to appear at the final hearing before the family law master and because the decree contained a provision awarding a permanent protective injunction against the husband, the Court held that (1) when the parties, by verified complaint and answer, admit irreconcilable differences exist, a divorce may be granted without an appearance by the parties at any hearing, and (2) when the facts of a particular case justify the award of a permanent protective injunction under W. Va. Code § 48-2-15(b) (8), even where no minor children are present, the circuit court shall not deny the protective injunction.

Calvin P. Fenton, et al. v. Taunja Willis Miller, No. 19174 (W. Va. March 29, 1990) (Neely, C.J.): 182 W.Va. 731, 391 S.E.2d 744:

In this appeal by the Department of Human Services, the Court held that, prior to the commencement of recoupment proceedings, child advocates are vested with discretion. Where appellant died after his appeal was granted, the Court held that although assigned to determine whether the defaulting parent presents clear and convincing evidence of errors relating to grounds for the divorce abated upon his death, his survivors couldan inability to pay, and to not proceed with such recoupment proceedings if such efforts prosecute assigned errors relating to attendant property rights, such as the lump-sum would be fruitless. alimony awarded by the trial court. Moreover, because they were never reduced to a formal prenuptial agreement, the Court reversed a trial court holding that love letters written by the appellant promising to "take care of" his fiance and that she would "be his forever" constituted an express contract. Finally, the Court affirmed a lump-sum alimony award of $67,000 based, in part, on relinquishment of alimony payments by a former husband to the appellant's wife upon their marriage.

Robert C. Bridgeman, John B. Bridgeman, and David F. Bridgeman, Executors of the Estate of Robert Bridgeman, Deceased v. Barbara McKettrick Bridgeman, No. 19045 (W. Va. March 22, 1990) (Neely, C.J.): 182 W.Va. 677, 391 S.E.2d 367:

Where appellant died after his appeal was granted, the Court held that although assigned errors relating to grounds for the divorce abated upon his death, his survivors could prosecute assigned errors relating to attendant property rights, such as the lump-sum alimony awarded by the trial court. Moreover, because they were never reduced to a formal prenuptial agreement, the Court reversed a trial court holding that love letters written by the appellant promising to "take care of" his fiance and that she would "be his forever" constituted an express contract. Finally, the Court affirmed a lump-sum alimony award of $67,000 based, in part, on relinquishment of alimony payments by a former husband to the appellant's wife upon their marriage.

Richie Calvin Tankersley v. Debra Rosemary Tankersley, No. 18687 (W. Va. March 9, 1990) (Miller, J.): 182 W.Va. 627, 390 S.E.2d 826:

In a fight over equitable distribution of a funeral home operated as the husband's closely held corporation, the Court held that for purposes of equitable distribution under W. Va. Code § 48-2-32(d) (1), marital property must be divided on the basis of its "net value," rather than its "market value." The Court defined "net value" of a closely held corporation as the net amount realized by the owner should the business be sold for its fair market value, or, in other words, taking into account the owner's continued liability for the debts of the business after its sale.

Tamara Leigh Nichols v. Carl Edwin Nichols, No. 18914 (W. Va. March 9, 1990) (Brotherton, J.): 182 W.Va. 710, 391 S.E.2d 623:

Where an ex-husband sought credit against alimony of a note obtained in connection with a joint business venture with his ex-wife, who had

filed a Chapter 13 bankruptcy petition listing the debt to her ex-husband in her schedule of liabilities, the Court held that Section 553 of the Bankruptcy Reform Act of 1978 does not permit setoff where a creditor raises a pre-petition debt as a defense to a debtor's post-petition claim against the creditor.

Phyllis Jean Rogers v. Holroyd Elvin Rogers, No. 18824 (W. Va. December 21, 1989) (Workman, J.): 182 W.Va. 388, 387 S.E.2d 855:

Where the wife asserted on appeal that she did not receive an equitable distribution of the marital property, but had not developed the record sufficiently before the circuit court for the Court to determine on appeal whether there was a fair division of the marital assets, the Court remanded for the taking of additional evidence.

Michael K.T. v. Tina L.T., No. 18989 (W. Va. December 21, 1989) (Workman, J.): 182 W.Va. 399, 387 S.E.2d 866:

Although the Court reaffirmed the common law presumption of legitimacy of children conceived or born during marriage, the Court held that: (1) when an action is initiated to rebut the common law presumption of legitimacy, a guardian ad litem should be appointed to represent the child's interests; (2) when the putative father has represented himself to be the father of the child, he may be equitable estopped, under certain circumstances, from submitting blood test evidence to rebut the presumption of legitimacy; and, (3) blood test evidence may be admited to rebut the presumption of legitimacy if the facts and circumstances warrant the admission of such evidence.

Sherry Lou Clay v. Roger Dean Clay, No. 18988 (W. Va. December 20, 1989) (Workman, J.): 182 W.Va. 414, 388 E.2d 288:

The Court reversed a judgment entered against a former wife, in the context of modification proceeding brought by her former husband, for damages to the marital home, which was eventually awarded to the husband, caused by the family's pet dog, who was permitted by the former wife to urinate and defecate with impunity throughout their humble abode, holding that a family law master is without jurisdiction to award monetary damages in a modification proceeding. On another issue, the Court held that because W. Va. Code § 48-2-16(a) provides that child support is always subject to judicial modification, the parties to a divorce may not permanently fix the amount of child support by agreement.

Michele Andrea Shank v. Richard L. Shank, No. 18566 (W. Va. December 8, 1989) (Brotherton, C.J.): 182 W.Va. 271, 387 S.E.2d 325:

Where husband's business interests, which had been a gift from his father, had appreciated in value primarily in response to inflationary factors, the Court held that passive appreciation of separate property is not subject to equitable distribution. The Court noted, however, that active appreciation of separate property, resulting from the investment of marital property or work performed by either marriage partner, is subject to equitable distribution.

Charlene Baldwin v. John Moses, Magistrate of Mingo County; Joey Kohari, Magistrate of Mingo County; Bill Webb, Magistrate of Mingo County; and Claude Snavely, Clerk of the Magistrate Court of Mingo County, No. CC992 (W. Va. October 27, 1989) (Miller, J.): 182 W.Va. 120, 386 S.E.2d 487:

In a certified question proceeding exploring the jurisdiction of magistrates under the Prevention of Domestic Violence Ace, W. Va. Code § 48-2A-1, et seq., the Court held that (1) once a final divorce decree is entered, a magistrate court may assert jurisdiction and issue a domestic violence protective order; (2) even though a former spouse no longer resides in the household, he or she remains subject to the Prevention of Domestic Violence Act; and, (3) a divorce decree containing language enjoining each party from molesting, annoying, or interfering with the other does not defeat a petition under the Prevention of Domestic Violence Act.

David M. v. Margaret M., No. 19020 (W. Va. October 19, 1989) (Neely, J.): 182 W.Va. 57, 385 S.E.2d 912:

In this opinion, the Court revisits the "primary caretaker" rule first enunciated in Garska v. McCoy, 167 W. Va. 59, 278 S.E.2d 357 (1981), with respect to (1) the factors to be considered in determining who is the primary caretaker; (2) the type of evidence which may be introduced to identify the primary caretaker, announcing a preference for lay, rather than expert testimony; (3) the factors to be considered in determining whether the primary caretaker is "fit" to have custody, which is to be ascertained prior to any consideration of the "fitness" of the parent who is not the primary caretaker; and (4) the circumstances under which the preference of the children may be considered, which the Court states must be "exceptional" and not available as a matter of right to either party.

ELECTIONS

State of West Virginia ex rel. William Edward Sowards, II v. County Commission of Lincoln County; Paul D. Duncan, President, and Buster Stowers and Doug Waldron, members; and Kim Cecil, No. 23525 and State of West Virginia ex rel. Lewis Walker, Jr. v. Paul Lambert, Clerk of the Circuit Court of McDowell County; and Pete J. Beavers, No. 23541 (W. Va. July 17, 1996) (Cleckley, J.):

Refusing to remove two deputy sheriffs from the ballot despite their violation of W. Va. Code § 7-14-15(a) which required their resignation before becoming candidates for elective office, the Court held (1) the fundamental right to seek elective office cannot be denied unless compelling state interests are served; (2) only where election mandamus relief is sought to preserve the right to vote or seek elective office will the ordinary requirements for the award of mandamus relief be relaxed, particularly with respect to the existence of an adequate, alternative remedy; (3) the legislature has broad authority to prescribe reasonable rules for the conduct of elections; (4) there is a legitimate state interest in preserving the integrity of both the electoral process and civil service system and the legislature may impose limits on political activity by public employees if the state's interests outweigh the employees' first amendment rights; (5) the legislature may prohibit public employees from seeking elective office not only to avoid the potential of having an employee seeking his or her supervisor's elective post, but also to prevent any pressure on laterals or subordinates to assist in the employee's campaign; (6) although it is constitutionally permissible to suspend or discharge a deputy sheriff who seeks elective office, in order to achieve the goal of enfranchisement, judicial authority to remove a candidate from the ballot should be used sparingly; (7) political candidacy is a fundamental right that cannot be infringed upon where less restrictive alternatives are available; (8) only where the electoral process has been subverted by a candidate's clear constitutional or statutory disqualification, or by bribery, fraud, intimidation, or other unlawful conduct, should a court invalidate the preference of the voters; and (9) the statutory prohibition against deputy sheriffs engaging in partisan political activity is insufficient to warrant setting aside the election of a deputy sheriff who violated such prohibition by failing to resign his or her position.

State of West Virginia ex rel. Brian Billings v. The City of Point Pleasant, a municipal corporation; Marilyn McDaniel, City Clerk; Russell Holland, Mayor of the City of Point Pleasant; and all Council Members of the City of Point Pleasant, No. 22837 (W. Va. May 18, 1995) (Cleckley, J.): 194 W.Va. 301, 460 S.E.2d 436:

Upholding the constitutionality of a sixty day political party disaffiliation requirement, the Court held (1) the fundamental right to seek public office may not be restricted unless necessary to accomplish a legitimate and com pelling governmental interest; (2) political party affiliation, involving speech and associational freedoms protected by the first amendment and W. Va. Const. art. III, §§ 7 and 16, may not be restricted unless there is no less restrictive means of accomplishing a legitimate and compelling governmental interest; and (3) W. Va. Code § 3-5-7(b)(6), which disqualifies a candidate who has changed political party affiliation within sixty days prior to filing, is the least restrictive means of accomplishing the legitimate and compelling governmental interest in preserving the integrity of the political process, promoting party stability, and avoiding voter confusion.

Write-In Pritt Campaign, in its capacity as a duly authorized political action committee, etc., et al. v. Ken Hechler, in his capacity as Secretary of State of the State of West Virginia, No. 22394 (W. Va. July 21, 1994) (Workman, J.): 191 W.Va. 677, 447 S.E.2d 612:

Rejecting an attempt by Charlotte Jean Pritt supporters to convert votes cast in a failed write-in gubernatorial campaign into a right to appear on the ballot as the Mountaineer Party, the Court held that a political action committee does not qualify as an "affiliation of voters representing any principle or organization" within the meaning of