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SUMMARY OF RECENT OPINIONS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
http://www.state.wv.us/wvsca/clerk/recent/
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November 9, 2006 Issue #88
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This issue covers 4 opinions released on Friday October 27 and three opinions released on Thursday November 9.

Best regards,

Rory Perry
Clerk of Court

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CRIMINAL, PROCEDURE, JUVENILES :: Indictment and jury challenges waived

STATE v. TOMMY Y., Jr., No. 33055 (DAVIS, C.J.)(Starcher, J., concurring)(October 27, 2006). Petitioner, T. Y., Jr., a juvenile, appealed an order of the Circuit Court of Clay County upon convictions for the offense of assault on a school employee and brandishing. Affirming the convictions, and holding that the Rules of Criminal Procedure are applicable to juvenile delinquency proceedings, to the extent not inconsistent with applicable statutes. Also holding that challenges to charging instruments must be made prior to trial or be waived, absent jurisdictional grounds, and that failure to challenge lack of venue acted as a waiver in this case. Finally holding, in syllabus point 5, that: "When a defendant has knowledge of grounds or reason for a challenge for cause, but fails to challenge a prospective juror for cause or fails to timely assert such a challenge prior to the jury being sworn, the defendant may not raise the issue of a trial court's failure to strike the juror for cause on direct appeal."

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/fall06/33055.htm


FAMILY :: Name change reversed

IN RE: THE PETITION OF BLAKE A. CARTER, A MINOR, BY CHRISTINA KARAWAN FOR CHANGE OF NAME TO BLAKE KARAWAN, No. 33064 (Per Curiam)(Benjamin, J., dissenting)(November 9, 2006). Biological father appealed an order of the Circuit Court of Kanawha County that granted the name change of Blake Andrew Carter, thereby taking his stepfather's surname, as requested by the child's mother, Christina Marie Karawan. Reversing, and holding that the evidence did not establish a settled purpose on behalf of the biological father to forgo all duties and relinquish all parental claims, and accordingly the name change should have been denied.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/fall06/33064.htm


PROPERTY :: No easement requiring construction of bridge across creek

HAROLD B. WOLFE, ET AL. v. VIPS ALPIZAR, No. 33093 (Per Curiam)(October 27, 2006). Petitioners filed an action to enjoin Vips Alpizar from blocking access across Turkey Creek and sought an order that the defendant construct a bridge across the creek. The Circuit Court of Monroe County granted summary judgment in favor of Vips Alpizar. Affirming, albeit on a different legal theory than the circuit court, and holding that Ms. Alpizar was a bona fide purchaser with neither actual nor constructive notice of the existence of any prescriptive easement at the location of the bridge.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/fall06/33093.htm


TORTS :: Deliberate intent, failure to evaluate and identify hazards

JOSEPH E. RYAN v. CLONCH INUDSTRIES, INC., et al., No. 33001 (DAVIS, C.J.)(Benjamin, J., dissenting)(October 27, 2006). Joseph Ryan appealed an order of the Circuit Court of Nicholas County granting summary judgment in favor of defendant employers Clonch Industries, Inc. and H & D Lumber Distributors, Inc. in a deliberate intention workplace injury case. Appellant was working as a "bander," cutting and strapping metal bands around stacks of lumber for the employer sawmilling company, when he was struck in the eye with a piece of metal and lost the vision in his eye. Reversing the circuit court's grant of summary judgment, and holding that a regulation imposing a specifically identifiable duty upon employers, as opposed to a generalized safety goal, and being capable of application to the specific work at issue, is a proper foundation for the element of deliberate intent found at W.Va. Code 23-4-2(c)(2)(ii)(C). Accordingly, the employer's violation of a regulation requiring the employer to conduct a safety assessment and to require use of personal protective equipment satisfied the plaintiff's burden on that point. Further holding that the mandatory nature of the duty imposed, combined with the employer's admission that it violated that mandatory duty, satisfied the plaintiff's burden of establishing subjective realization. Declining to condone conduct where an employer can simply ignore a mandatory duty, and subsequently seek to avoid liability in a deliberate intent action by claiming a lack of subjective knowledge.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/fall06/33001.htm


TORTS :: No deliberate intent

WILLIAM L. SEDGMER, JR., NEXT FRIEND, ETC. v. MCELROY COAL CO., et al., No. 32960 (Per Curiam)(Starcher, J., dissenting)(October 26, 2006). Plaintiffs appealed an order of the Circuit Court of Marshall County that granted summary judgment in favor of defendants in a deliberate intent case. Holding that the circuit court correctly determined that the accident was a singular incident not indicative of a specific unsafe working condition.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/fall06/32960.htm


TORTS, ATTORNEYS :: Genuine issue in legal malpractice action

SAMANTHA SELLS v. ARNOLD RAY THOMAS, ET AL., No. 32969 (Per Curiam)(November 9, 2006). Plaintiff Samantha Sells appealed an order of the Circuit Court of Mercer County granting summary judgment in favor of defendant Kenneth Chittum, Esq., on plaintiff's legal malpractice claims. Holding that a genuine issue of material fact exists as to whether the defendant's failure to pursue an underinsured motorist claim prior to settlement with the tortfeasor caused the plaintiff to suffer a loss constituting legal malpractice.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/fall06/32969.htm


TORTS, PROCEDURE :: MPLA pre-suit requirements

SARINA L. DAVIS, ADMX. v. MOUND VIEW HEALTH CARE, INC., No. 33104 (BENJAMIN, J.)(Davis, C.J., dissenting)(November 9, 2006). Plaintiff appealed an order of the Circuit Court of Marshall County that dismissed her medical malpractice/wrongful death lawsuit for failure to adhere to the pre-suit requirements of the Medical Professional Liability Act. Declining to address the constitutional challenges to the Act, and holding in syllabus point 3 that if an order dismissing such a suit does not specify that the dismissal is without prejudice, the dismissal will de deemed to be without prejudice, and the action may be re-filed after compliance with the pre-suit notice of claim and screening certificate of merit provisions of W.Va. Code 55-7B-6.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/fall06/33104.htm

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