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SUMMARY OF RECENT OPINIONS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
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December 15, 2005 Issue #82
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This issue covers the first 12 opinions filed on November 17, 2005.


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ABUSE & NEGLECT :: Custody properly granted to parents, evidence did not establish shaken baby impact syndrome

STATE EX REL. WV DHHR v. FOX, et al., No. 32847 (Per Curiam)(Maynard, J., dissenting)(Starcher, J., concurring)(Benjamin, J., concurring)(November 17, 2005). Denying a writ of prohibition sought by the DHHR to prevent enforcement of an order granting custody of a minor child to his parents, after the father entered an Alford plea of guilty to involuntary manslaughter of the child's brother. Holding that the circuit court was within its authority to grant a pre-adjudicatory improvement period. Further holding that in light of the medical evidence, it is impossible to definitively state that the deceased child was a victim of Shaken Baby Impact Syndrome, and that the evidence did not establish by clear and convincing evidence that the father abused the deceased child. Accordingly, in the absence of evidence that the minor child lived in the same residence as another abused child, the court did not err when it returned physical and legal custody of the minor child to his parents.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32847.htm


ADMINISTRATIVE, LEGISLATIVE RULEMAKING :: Absence of duly promulgated rules

WEIRTON HEIGHTS VOLUNTEER FIRE DEPT., INC., et al. v. STATE FIRE COMM'N, No. 32721 (BENJAMIN, J.)(Davis, J., concurring)(November 17, 2005). Reversing an order of the Circuit Court of Hancock County that affirmed, in part, a decision by the State Fire Commission to withdraw recognition of two fire departments. Holding, in syllabus point 1, that: "The State Fire Commission's withdrawal of certification (or recognition) of an existing volunteer fire department in the absence of duly promulgated rules or regulations setting forth the criteria used to guide the certification determination is deemed to be arbitrary, capricious and an abuse of discretion."

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32721.htm


ADMINISTRATIVE, HEALTH CARE :: Certificate of need properly denied

FAMILY MEDICAL IMAGING, LLC, et al. v. WV HEALTH CARE AUTHORITY, et al., No. 32565 (Per Curiam)(Starcher, J., dissenting)(Nov. 17, 2005). Affirming an order of the Circuit Court of Raleigh County, that affirmed a decision by the Health Care Authority to deny a Certificate of Need sought to provide ultrasound diagnostic services to patients referred by other physicians in the counties of Raleigh, Wyoming, McDowell, Fayette, Summers and Nicholas. Holding that the agency properly applied the ambulatory care rather than the acute care standard, and that the agency's decision regarding the size of the service area, as governed by the agency's interpretive rule requiring a showing of significant pre-existing clients, was not arbitrary.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32565.htm


CRIMINAL :: Statement to authorities correctly admitted

STATE v. FREDERICK SMITH, No. 32582 (Per Curiam)(November 17, 2005). Affirming a conviction obtained in the Circuit Court of Marion County of Possession with Intent to Deliver Cocaine and Possession of a Deadly Weapon by a Felon. Holding that a statement the appellant provided to authorities was properly admitted, in the absence of any independent evidence indicating that he actually suffers from a learning disability that would prevent him from understanding the rights read to him. Holding that the State properly established by a preponderance of the evidence that the statement was voluntary and properly admitted into evidence at trial.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32582.htm


CRIMINAL, HABEAS CORPUS :: No JENKINS error in 1993 conviction

STATE EX REL. CORBIN v. HAINES, No. 32502 (Per Curiam)(November 17, 2005). Affirming a decision of the Circuit Court of Putnam County that denied post-conviction habeas corpus relief. Holding that there is no need to consider whether the principles of STATE v. JENKINS, 191 W.Va. 87, 443 S.E.2d 244 (1994) -- which was decided two weeks after the refusal of the appellant's direct appeal -- have retroactive effect, because the jury instruction at issue remains a correct statement of the law in cases where no evidence of legal excuse, justification or provocation is presented to the jury for consideration.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32502.htm


FAMILY, PROCEDURE :: Notice of final divorce hearing

FERNANDEZ v. FERNANDEZ, No. 32671 (Per Curiam)(November 17, 2005). Reversing an order of the Circuit Court of Fayette County that refused to grant 60(b) relief from a final divorce order. Holding that the relief should have been granted where the appellant was not provided written notice of the final divorce hearing, as required by Rule 21 of the Rules of Practice and Procedure for Family Court.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32671.htm


INSURANCE, CONFLICT OF LAWS :: Intra-insured suit exclusion applied under Ohio law

HOWE v. HOWE, et al., No. 32573 (BENJAMIN, J.)(Albright, C.J., dissenting)(Starcher, J., dissenting)(November 17, 2005). Affirming a partial summary judgment order of the Circuit Court of Marion County in a dispute over insurance coverage. Holding, in syllabus point 6, that: "The conflicts of law principles announced in Syllabus Point 2 of Lee v. Saliga, 179 W. Va. 762, 373 S.E.2d 345 (1988) and Syllabus Point 4 of Nadler v. Liberty Mut. Fire Ins. Co., 188 W. Va. 329, 424 S.E.2d 256 (1992), are applicable to the interpretation of coverage under a motor vehicle insurance policy are also applicable to the interpretation of coverage under a motorcycle insurance policy, a homeowner's insurance policy and a personal liability umbrella insurance policy." Holding that under Ohio law, the intra-insured or household exclusion was valid.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32573.htm


JUVENILES, CRIMINAL PROCEDURE :: MDT process in delinquency matters

STATE v. BRANDON B. -and- STATE v. JAQUIN B., Nos. 32052 and 32563 (DAVIS, J.)(November 17, 2005). Reversing orders of the Circuit Courts of Berkeley and Brooke Counties in juvenile delinquency proceedings that temporarily placed juveniles in out-of-state facilities. Holding that the West Virginia Department of Health and Human Resources had standing to appeal and that the issue raised, though technically moot, is proper for appellate review. Further holding that the multidisciplinary treatment planning process set forth in West Virginia Code 49-5D-3 is required in delinquency proceedings when the court is considering placing the juvenile out-of-home at the expense of the WVDHHR, or when the court is considering placing the juvenile in the custody of the WVDHHR.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32052.htm


PROFESSIONAL DISCIPLINE :: Mental disability as mitigating factor

LAWYER DISCIPLINARY BOARD v. THEODORE R. DUES, JR., No. 31713 (DAVIS, J.)(Benjamin, J., dissenting)(November 17, 2005). Modifying a disciplinary recommendation of a Hearing Panel Subcommittee of the Lawyer Disciplinary Board. Holding that a mental disability is considered mitigating in a lawyer disciplinary proceeding when certain factors are met. Imposing public reprimand, practice restrictions, and other sanctions.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/31713.htm


PROPERTY :: Attorney fees in inverse condemnation action

WEST VIRGINIA DEPT. OF TRANSPORTATION, DIV. OF HIGHWAYS v. DODSON MOBILE HOME SALES AND SERVICES, INC., No. 32558 (ALBRIGHT, C.J.)(November 17, 2005). Reversing an order of the Circuit Court of Berkeley County that denied a request for attorney fees in the context of an eminent domain action. Rejecting an argument that authority for making fee awards extends only to situations where a State agency has not initiated condemnation proceedings and has specifically found that the property taken was an uneconomic remnant. Holding, in syllabus point 5, that: "Pursuant to the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs Property Acquisition Act, 42 U.S.C. 4601 - 4655 (2000), the event triggering the award of attorneys' fees in a proceeding involving inverse condemnation, as set forth in Title 49, Section 24.107 of the Code of Federal Regulations, is when '[t]he court having jurisdiction renders a judgment in favor of the owner.'"

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32558.htm


TAXATION, HEALTH CARE :: Scope of privilege tax on health care providers

STATE TAX COMMISIONER v. REM COMMUNITY OPTIONS, INC., No. 32580 (ALBRIGHT, J.)(Maynard, J., dissenting)(Starcher, J., concurring)(November 17, 2005). Affirming, on different grounds, a decision of the Circuit Court of Kanawha County that reversed a decision by the Office of Tax Appeals that had significantly reduced the amount of privilege taxes owed by a taxpayer who provides services pursuant to Title XIX of the Social Security Act, known as the Mental Retardation Developmental Disability Waiver Program, 42 U.S.C. 1396. Holding that it is unnecessary to address certain retroactive legislative amendments because the applicable statute as enacted applies to the behavioral services provided by the taxpayer. Holding, in syllabus point 3, that: "The term 'health care related,' as it pertains to the provision of behavioral health services within the meaning of West Virginia Code 11-13A-2(d) (1995) (Repl. Vol. 2003) for purposes of levying the privilege tax upon certain health care providers, broadly encompasses both physical and mental health and all the various services related to maintaining or restoring an individual's physical and/or mental health." Finally holding, in syllabus point 4, that: "The privilege tax imposed under West Virginia Code 11-13A-3 (1997) (Repl. Vol. 2003) upon certain health care providers is not limited in application to behavioral health care services that are provided by licensed medical providers."

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32580.htm


UNEMPLOYMENT COMPENSATION, PROCEDURE :: Resignation without good cause, no new evidence on appeal

ADKINS, et al. v. GATSON, et al., No. 32509 (Per Curiam)(Starcher, J., dissenting)(November 17, 2005). Affirming, on separate grounds, a decision of the Circuit Court of Kanawha County. Holding that because W.Va Code 21A-7-17 provides a vehicle for appealing an administrative decision on unemployment benefits, the circuit court erroneously treated the case as a writ of certiorari, and improperly considered new evidence on appeal. Affirming the decision to deny benefits on separate grounds, holding that the evidence presented indicates that the employees were disqualified from receiving benefits because the City took reasonable measures to protect the employees' safety, and consequently the employees' decision to resign was without good cause involving fault on the part of the city.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32509.htm

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