===========================================================
SUMMARY OF RECENT OPINIONS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
http://www.state.wv.us/wvsca/clerk/recent/
===========================================================
October 5, 2006 Issue #87
==============================
This issue covers 5 opinions released today, including one opinion held over from the previous term of court. These are the first opinions filed in the September term of court.
Best regards,
Rory Perry Clerk of Court
==========================================================
CRIMINAL :: Statutory terms clarified
STATE v. NORMA JEAN SAUNDERS, No. 33034 (ALBRIGHT, J.)(October 5, 2006). Norma Jean Saunders appealed her conviction upon conditional guilty plea in the Circuit Court of Kanawha County of one count of a felony violation of the Solid Waste Management Act, W.Va. Code 22-15-15(b)(4). She operated a landfill and received a cease and desist order for various violations from the West Virginia Department of Environmental Protection. Her conviction arose out of her failure to abide by the terms of the order. She was sentenced to six months probation and ordered to pay a fine. On appeal she argued that the indictment failed to allege an essential element of felony offense in that the indictment charged her with violating an enhancement statute that requires a prerequisite conviction before a felony can be imposed. Holding, in syllabus point 1, that: "While a prior conviction under the Solid Waste Management Act can be grounds for a felony conviction under West Virginia Code 22-15-15(b)(4) (2002), a prior conviction is not an essential element of the offense because the Legislature expressly framed the elements of the offense in the disjunctive." Finally holding in syllabus point 2, that: "Within the meaning of West Virginia Code 22-15-15 (2002), the term 'willfully' connotes conduct that was intentionally engaged in that had as its consequences the violation of the law, while the term 'knowingly' requires the additional element of demonstrating that the actor was consciously aware when engaging in the illegal conduct that such conduct was in violation of the law."
To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/fall06/33034.htm
EMPLOYMENT, MUNICIPALITIES :: Commission's determination supported
CAPTAIN EARL F. LEGG, JR. v. MAYOR DAVID A. FELINTON, et al., No. 33044 (Per Curiam)(October 5, 2006). The City of Huntington appealed an order of the Circuit Court of Cabell County reversing a decision of the Fireman's Civil Service Commission that upheld the City's decision to suspend, without pay, and/or terminate plaintiff for a "substituted-refusal to test" drug test conducted pursuant to a reasonable suspicion. Holding that the circuit court erred, in that the evidence presented to the Commission was sufficient to support the determinations regarding the existence of exigent circumstances, that there is no indication that any of the Commission's findings were clearly wrong, based upon mistake of law, arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. Reinstating the order of the Commission.
To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/fall06/33044.htm
FAMILY :: Credible evidence standard should have been applied
IN RE: JASON B. AND JASMINE S., No. 33009 (Per Curiam)(October 5, 2006). Two mothers appealed an order of the Circuit Court of Harrison County that refused an appeal of a family court order denying their request for modification of visitation. Holding that the credible evidence standard should have been applied to evaluate the allegations of sexual abuse, and that the lower courts erred when placing the visitation rights of the father above the best interests of the children. Remanding for immediate implementation of a plan for supervised visitation.
To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/fall06/33009.htm
FAMILY :: Equitable distribution and stock valuation
ARNEAULT v. ARNEAULT, No. 32865 (DAVIS, C.J.)(Starcher, J., concurring in part and dissenting in part)(Maynard, J., dissenting)(Albright, J., and Benjamin, J., concurring)(October 5, 2006). Reversing an order of the Circuit Court of Hancock County that divided the marital estate with a 35/65 split, valued certain stock at a discount rather than in kind, and made certain other interest determinations and valuations. Holding that the circuit court erred in ratifying the equitable distribution agreement, that the statutorily presumed fifty percent distribution to each party should apply, and that the proper disbursement of the stock is a disbursement in kind. Also holding, in syllabus point 6: "W. Va. Code 48-7-105 (2001) (Repl. Vol. 2004) instructs a court how to equitably distribute a martial estate's ownership interests in a business entity and directs the court to (1) 'give [a conditional] preference to the retention of the ownership interests'; (2) consider the party who has the 'closer involvement' with, 'larger ownership interest' in, or 'greater dependency' on such business; (3) further consider 'the effects' that a 'transfer or retention' of such ownership interests would have on the business, itself; and (4) secure the rights of the parties to receive that to which they are equitably entitled under this provision, either through an in kind transfer of the ownership interests or by the transfer of money or other property of equivalent value."
To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/fall06/32865.htm
TRUSTS :: Trust created, not destroyed by commingling or when last formal agreement expired
SER INSURANCE COMM'R OF WV v. BLUE CROSS & BLUE SHIELD OF W. VA., INC., et al., No. 32979 (DAVIS, C.J.)(October 4, 2006). This appeal involved a contested matter arising in an action filed by the West Virginia Insurance Commissioner in 1990 against Blue Cross and Blue Shield of West Virginia, which resulted in an order placing Blue Cross in receivership and enjoining any actions by creditors or other parties against Blue Cross. This action comes from a May 10, 2005 Order of the Circuit Court of Kanawha County adopting the referee's recommendations and entering an order granting summary judgment to the Receiver and denying the UMWA's motion for summary judgment, wherein the UMWA sought a determination that certain moneys had been placed with Blue Cross as a trust fund, and should therefore not be part of the liquidation estate. Holding that the UMWA successfully established the existence of a trust, and setting forth three new syllabus points clarifying the law in this area. Syllabus point 2: "Where a person, not acting merely as agent, has or accepts possession and control of money, promissory notes, or other personal property, with the express or implied understanding that he is not to hold it as his own absolute property, but is to hold and apply it for certain specific purposes, or for the benefit of certain specified persons, a valid and enforceable trust exists." Syllabus point 3: "When a trust is created through the conveyance of personal property to another person, either in trust for the person making the conveyance, or in trust for a third person, no writing is required." Syllabus point 6: "The lowest intermediate balance rule is used when a trustee withdraws money from a commingled fund and subsequently makes additions to the fund. Under the lowest intermediate balance rule, there exist three alternative scenarios: (1) if the amount on deposit in a commingled fund has at all times equaled or exceeded the amount of the trust, the monies of the trust will be returned in their full amount; (2) if the commingled fund has been depleted entirely, the trust is considered lost; and (3) if the commingled fund has been reduced below the amount of the trust but has not been depleted, the settlor is entitled to the lowest intermediate balance in the account."
To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/fall06/32979.htm
~~~~~~~~~~~~~~~~~~~~~~~ NOTICES & TERMS OF USE ~~~~~~~~~~~~~~~~~~~~~~~
+ The "opinions" referred to within this message and appearing on the Court's Web site are also known as "slip opinions" and are not the final, official opinions of the Court. Slip opinions are subject to modification and petitions for rehearing pursuant Rule 24 of the Rules of Appellate Procedure. Opinions of the Court remain subject to clerical correction until officially published in the bound volumes of the West Virginia Reports (West Publishing Co.). Readers are encouraged to notify the Clerk of the Supreme Court, State Capitol, Room E-317, Charleston, WV 25301, of any typographical or other formal errors so that corrections may be made before final publication in the permanent volume.
+ All topical headings, taglines and opinion summaries are drafted by the Clerk's Office and are not intended to be an authoritative statement of the holding of the Court in any particular matter. Readers are heartily encouraged to read the opinions for themselves.
+ This e-mail message may be freely redistributed, so long as the message is redistributed in its entirety. Commercial use or redistribution is prohibited. Links to summaries are permissible, (with attribution please). Permanent links to summaries may be obtained as summaries are posted on the Recent Opinions Weblog: http://www.state.wv.us/wvsca/Clerk/Recent/ =========================================================
Copyright 2001-06, Office of the Clerk, Supreme Court of Appeals of West Virginia
This email was sent to [email address suppressed].
You can instantly unsubscribe from these emails by clicking the link below:
http://westvirginiasupremecourt.cmail1.com/.aspx/u/olltj/l/