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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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February 1, 2008 Issue #94
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This issue covers each of the 58 opinions issued in the September 2007 term of court. There were 42 per curiam and 16 signed opinions.

If this message is truncated, a full version is available online at:

Just scroll down the page and click on "Issue #94."

The first two opinions of the January 2008 term of court were released on Thursday, January 25. The opinion list for the Spring 2008 term can be found at:


Best regards,

Rory Perry
Clerk of Court

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ATTORNEYS, PROPERTY :: Former representation conflict

STATE EX REL. JEFFERSON COUNTY BOARD OF ZONING APPEALS v. WILKES, et al., No. 33500 (STARCHER, J.)(November 20, 2007). Granting a writ of prohibition to prevent enforcement of an order of the Circuit Court of Jefferson County that denied a motion to disqualify counsel. Holding that the circuit court improperly determined that each step or stage of a conditional use permit application was a separate and not substantially related matter pursuant to Rule 1.11(a) of the Rules of Professional Conduct. Holding that former counsel for the Board of Zoning Appeals was disqualified from representing a developer whose application had been under review while he was counsel for the BZA. Further holding that it was improper for the circuit court to place the burden on the BZA to recall and divulge particular confidences and instances of advice and counsel by its former attorney, because this is to be presumed where the former client establishes, as the BZA did in this instance, that the attorney is representing a client in a substantially related matter.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33500.htm


CONTRACTS, CONSTRUCTION, PUBLIC FINANCE :: Scope of subcontractor for claims on bond

PREUSSAG INTERNATIONAL STEEL CORP. v. MARCH-WESTIN CO., et al., No. 33286 (STARCHER, J.)(Albright, J., concurring)(November 9, 2007). Answering a certified question from the United States District Court for the Northern District of West Virginia in a dispute over a claim against the surety bond obtained in accordance with W. Va. Code 38-2-39, relating to the construction of a new Student Recreation Center at Fairmont State College. A raw steel supplier to a custom steel fabricator sought to claim against the bond after the supplier went unpaid. Holding that the bond is available to the steel supplier, after applying a multi-factor analysis set forth in syllabus point 3: "For purposes of the public construction bond statute, W.Va. Code, 38-2- 39 [2004], a party need not necessarily perform work at the construction job site itself in order to be considered a subcontractor. To make the determination in a public construction bond case whether a party that furnishes labor or materials to the project should be classified as a subcontractor or as a materialman, a multi-factorial analysis should be used, with no single factor being determinative. The core inquiry is whether the party in question takes from the prime contractor a specific and substantial part of the labor or material requirements of the original contract, thus excluding ordinary laborers and materialmen."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33286.htm


CONTRACTS, TORTS :: Breach of contract to purchase coal truck

T & R TRUCKING, INC. v. MAYNARD; FARLEY, Appellant, No. 33346 (Per Curiam)(November 21, 2007). Granting mixed relief from an order of the Circuit Court of Wayne County entered following a jury verdict favorable to the appellee on a counterclaim in a breach of contract action. Holding that the circuit court properly excluded evidence regarding the fact that appellee did not have a driver's license or coal truck driver certification at the time the contract was executed. Further holding that the circuit court erred in denying a motion for judgment as a matter of law with regard to a claim against the trucking company president individually, as there was no evidence presented to support piercing the corporate veil, and the verdict form should have reflected that. Remanded with directions.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33346.htm


CONTRACTS, TORTS, PROCEDURE :: Construing a forum selection clause, res judicata

CAPERTON, et al. v. A.T. MASSEY COAL CO., et al., No. 33350 (DAVIS, C.J.)(Starcher, J., dissenting)(Albright, J., dissenting)(Benjamin, J., concurring)(November 21, 2007). Reversing a jury verdict obtained following a lengthy trial in the Circuit Court of Boone County. Holding that the circuit court erred in failing to grant a motion to dismiss based upon the existence of a forum selection clause in a contract directly related to the dispute at issue. Setting forth extensive guidance for construing and applying a forum selection clause, both to signatories and non-signatories. Further holding that res judicata is an independent basis for reversal, due to an earlier action litigated in Virginia.

NOTE: This summary is provided for informational purposes only. On January 24, 2008 the Court granted a petition for rehearing in this action. (Maynard, C.J., disqualified)(Cookman, Judge, by temporary assignment).

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33350.htm


CRIMINAL :: Numerous errors rejected, second degree murder

STATE v. ERIC ALLEN FOSTER, No. 33323 (Per Curiam)(Benjamin, J., disqualified)(Moats, Judge, by temporary assignment)(November 19, 2007)(Rehearing denied, January 10, 2008). Affirming an order of the Circuit Court of Nicholas County imposing two consecutive forty-year sentences upon jury conviction for two counts of second degree murder. Rejecting assertions that there was insufficient evidence of intent. Further holding that certain jury instructions and selection of certain jurors did not constitute plain error, and that there was no per se ineffective assistance of counsel.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33323.htm


CRIMINAL :: Proportionality of 212 year sentence; effectiveness of habeas counsel waived

STATE EX REL. FREDERICO HATCHER v. McBRIDE, Warden, No. 33244 (Per Curiam)(November 9, 2007). Affirming an order of the Circuit Court of Cabell County that denied a post-conviction habeas corpus petition. Holding that the 212 year sentence for a single count of aggravated robbery was within statutory limits and that the circuit court properly took into account the defendant's extensive and escalating criminal history. Deeming the defendant's skeletal argument regarding ineffective assistance of habeas counsel to have been waived, given the absence of supporting arguments or authority.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33244.htm


CRIMINAL :: Negligent homicide

STATE ex rel. NELSON, Prosecuting Attorney v. FRYE, No. 33499 (Per Curiam)(November 8, 2007). Denying a writ of prohibition sought to prevent dismissal of negligent homicide charges following a logging truck accident that resulted in the death of another driver. Holding that where the evidence showed that the truck driver was in excess of the recommended speed, but not over the speed limit, there was insufficient evidence of reckless disregard to sustain the charges.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33499.htm


CRIMINAL :: Incest, sexual assault, double jeopardy

STATE v. JONATHON FREEMONT RAY, No. 33324 (BENJAMIN, J.)(Starcher, J., concurring)(Albright, J., concurring)(November 8, 2007). Affirming sentences upon multiple convictions for sexual assault, incest and other sex-based offenses imposed by the Circuit Court of Preston County. Rejecting defendant's assertion that consanguinity is an element of the offense of incest, and holding that the statutory definition of incest is met where the victims were stepchildren of the defendant's biological brother. Further rejecting the assertion that double jeopardy prevents convictions for sexual assault and incest arising from the same incident. Applying the Blockburger test to determine that each offense requires a separate element to be proven.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33324.htm


CRIMINAL :: Sufficient evidence to support sexual abuse by custodian

STATE v. KENNETH RAY COLLLINS, No. 33300 (Per Curiam). Affirming a conviction and sentence imposed by the Circuit Court of Mingo County upon conviction for one count of sexual abuse in the third degree and one count of sexual abuse by a parent, guardian or custodian. Holding that the record –- including evidence that the defendant "controlled and supervised the eleven year old girl on numerous, albeit temporary, occasions when he would take her away from home to go riding on his four-wheeler" -- reveals a sufficient basis for the jury to conclude that the defendant met the statutory definition of custodian.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33300.htm


CRIMINAL :: Lesser-included misdemeanor, statute of limitations defense waived

STATE v. DANIEL B. BINGMAN, No. 33299 (Per Curiam)(Starcher, J., dissenting)(Albright, J., dissenting)(October 26, 2007). Affirming a conviction and sentence imposed by the Circuit Court of Gilmer County upon conviction for one count of petit larceny in violation of W. Va. Code 61-3-13(b). The indictment for grand larceny occurred more than one year after the offense. Holding that defense counsel failed to object to jury instructions on the lesser-included offense, thereby waiving any statute of limitations defense that could be asserted, in accord with rule announced in syllabus point 3 of STATE v. BOYD, 209 W. Va. 90, 543 S.E.2d 647 (2000).

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33299.htm


CRIMINAL :: Assessment of jury costs on defense counsel reversed

STATE EX REL. TERRON GODFREY v. ROWE, No. 33444 (Per Curiam)(Davis, C.J., concurring in part and dissenting in part)(October 16, 2007). Granting a moulded writ of prohibition to prevent enforcement of an order imposing jury costs on defense counsel following a mistrial. Holding that the trial court properly rejected defendant's assertion that the second trial was barred by double jeopardy. Further denying as premature relief sought in relation to a motion to join counts of a subsequent indictment and directing the circuit court to address the joinder motion.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33444.htm


CRIMINAL :: No prejudice in trial court amending indictment

STATE v. RICHARD ALLEN HAINES, No. 33304 (Per Curiam)(October 12, 2007). Affirming an order of the Circuit Court of Hampshire County that imposed sentence upon a jury conviction for one count of felony delivery of a Schedule II controlled substance. Rejecting appellant's contention that the trial court erred in amending the indictment, which had erroneously identified methamphetamine as a Schedule I controlled substance. Holding that the trial court properly concluded that the amendment was not substantial and did not require resubmission to the grand jury in light of the fact that the appellant was not misled, there was no additional burden of proof, and he was not prejudiced as a result of the amendment.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33304.htm


CRIMINAL :: Sufficient evidence to sustain murder conviction

STATE v. THOMAS JOSEPH MACPHEE, No. 33297 (Per Curiam)(Maynard, J., concurring)(October 12, 2007). Affirming an order of the Circuit Court of McDowell County that imposed a life sentence with mercy following a jury conviction for felony murder. Rejecting appellant's argument that he was merely an accessory after the fact. Holding that the evidence was sufficient to sustain the conviction.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33297.htm


CRIMINAL, HABEAS CORPUS, ATTORNEYS :: Ineffective assistance of counsel in mercy phase

STATE EX REL. SHANE SHELTON v. PAINTER, Warden, No. 33322 (Per Curiam)(Maynard, J., concurring in part and dissenting in part)(Benjamin, J., concurring in part and dissenting in part)(November 21, 2007). Granting mixed relief from an order of the Circuit Court of Ohio County that denied a post-conviction habeas corpus petition after conducting an evidentiary hearing. After testifying at trial and admitting that he shot the victim, Shelton was convicted of first degree murder without mercy. Reviewing the single issue of ineffective assistance of counsel at trial, and holding that defense counsel betrayed his duty of loyalty to his client during closing argument by equivocating about whether his client deserved mercy, by failing to introduce any evidence in support of mercy, and by failing to make any meaningful plea for mercy, especially when combined with counsel's over-emphasis of his client's obvious guilt. Declining to remand for new trial on the issue of guilt, and requiring a limited new trial only on the penalty issue of whether Shelton should or should not receive mercy.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33322.htm


CRIMINAL, EVIDENCE :: Improper search

STATE v. KENNETH BOOKHEIMER and STATE v. JESSICA TINGLER, Nos. 33289 and 33290 (Per Curiam)(Starcher, J., concurring)(Maynard, J., dissenting)(Albright, J., concurring)(Benjamin, J., dissenting)(November 8, 2007)(Rehearing denied, January 10, 2008). Reversing orders of the Circuit Court of Braxton County that imposed sentences on convictions of conspiracy and operating a clandestine drug laboratory. Holding that the circuit court erred by allowing introduction of evidence seized as the result of an illegal search. Holding that agitated behavior by a resident upon the officer's arrival after receipt of a call regarding a domestic dispute did not create an emergency or exigent circumstance justifying warrantless entry into the mobile home. Neither party consented, officers were asked to leave, and there was no indication that a protective sweep was warranted or justified. Remanded for a new trial.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33289.htm


CRIMINAL, EVIDENCE :: 404(b) violations during cross-examination of defendant

STATE v. DAVID NELSON, No. 33188. (Per Curiam)(Maynard, J., dissenting)(Starcher, J., concurring)(October 30, 2007). Reversing jury convictions of six felony offenses related to the death of Wanda Lesher, upon which the defendant had been sentenced to two terms of life without mercy, among other sentences to be served consecutively, on the basis that the defendant was denied a fair trial. Where defendant relied upon an alibi defense and testified at trial, it was error to permit the State on cross-examination to raise alleged acts of past misconduct that were unverified, inflammatory and not subjected to the requirements of Rule 404(b). The alleged acts were also not admissible in the context of rebuttal upon the issue of character.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33188.htm


CRIMINAL, JURY :: New trial awarded due to juror misconduct

STATE v. DANNY L. CECIL, No. 33298 (Per Curiam)(Maynard, J., dissenting)(November 21, 2007). Reversing an order of the Circuit Court of Putnam County imposing sentence upon jury convictions for multiple sex crimes. Rejecting several trial errors, including an assertion that the trial court improperly limited a defense expert with statistical evidence tending to undermine the veracity of assertions of sexual abuse victims. Reversing and remanding for a new trial in light of multiple instances of juror misconduct including investigation extrinsic to the deliberation process and one juror who contradicted the court's instructions on the weight to be given to testimony of witnesses. Remanded for new trial.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33298.htm


CRIMINAL, JURY :: Juror who worked with law enforcement properly seated

STATE v. WILLIAM MILLS, JR., No. 33340 (Per Curiam)(October 25, 2007). Affirming an order of the Circuit Court of Kanawha County that imposed sentence upon a jury conviction for delivery of a controlled substance. Rejecting appellant's contention that the trial court erred in refusing to strike a juror for cause. The juror was in uniform as a medic for county emergency services and also served on a volunteer fire department with a potential state witness. Concluding that the appellant failed to demonstrate a disqualifying social relationship, and further failed to specifically inquire as to the nature of the juror's relationships with law enforcement officials, and that the juror was very clear about being able to remain impartial.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33340.htm


CRIMINAL, JURY :: No Batson violation

CHRISTOPHER LEE DAVIS v. McBRIDE, No. 33199 (Per Curiam)(October 12, 2007). Affirming an order of the Circuit Court of Kanawha County that denied a request for post-conviction habeas corpus relief. Affirming the circuit court's conclusion that the State had a legitimate non-discriminatory reason for using a peremptory strike to exclude the only African-American from the jury panel.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33199.htm


EDUCATION, PROFESSIONAL DISCIPLINE :: Teaching certificate reinstated

POWELL v. PAINE, State Superintendent, No. 33325 (Per Curiam)(Starcher, J., concurring)(Benjamin, J., concurring)(November 21, 2007). Reversing an order of the Circuit Court of Kanawha County that affirmed a decision by the State Board of Education that imposed a four-year suspension on a high school teacher who had been disciplined but not dismissed by the county school board. Teacher was subject to DHHR proceedings and pled guilty to domestic battery after beating his nine-year old son with a belt. Holding that the applicable statute requires proof of unfitness to teach and a rational nexus, neither of which were demonstrated by clear and convincing evidence or supported by the state board's decision. "Absent evidence of any ill-effects on his ability to teach, appellant has complied with the redemptive measures established in our society to rehabilitate his behavior and we find no reason why appellant should not be permitted to resume his teaching career without further delay."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33325.htm


EMPLOYMENT, INSURANCE, WORKERS' COMPENSATION :: No action against third-party administrator

WETZEL v. EMPLOYERS SERVICE CORP. OF AMERICA, No. 33337 (Per Curiam)(Starcher, J., concurring in part and dissenting in part)(Albright, J., dissenting)(Maynard, J., concurring)(November 8, 2007). Affirming an order of the Circuit Court of Marshall County that granted summary judgment in favor of defendant below, ESC, a third-party administrator for a workers' compensation program. Holding that ESC, as an agent of the employer, is immune from common law actions pursuant to statutory immunity. Further holding that ESC is not subject to an allegation of statutory bad faith because it is not engaged in the business of insurance for purposes of the UTPA.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33337.htm


EMPLOYMENT, HIGHER EDUCATION :: No bumping rights; no favoritism

FRYMIER v. GLENVILLE STATE COLLEGE, Nos. 32163 and 33296 (Per Curiam)(Starcher, J., dissenting)(Maynard, J., concurring)(Albright, J., dissenting)(October 12, 2007). Affirming orders of the Circuit Court of Gilmer County in a grievance appeal. Holding that the circuit court correctly determined that Ms. Frymier was not entitled to bumping rights under West Virginia Code 18B-7-1 and further that Glenville State College did not make its job retention decision based on favoritism. Holding that West Virginia Code 18B-7-1 does not apply because there was no reduction in work force through either termination or temporary furlough. Further holding that any difference in treatment was purely related to actual job responsibilities, and therefore Ms. Frymier was not the victim of favoritism.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/32163.htm


EMPLOYMENT DISCRIMINATION :: Discrimination finding reversed

COLGAN AIR, INC. v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and RAO ZAHID KHAN, No. 33355 (Per Curiam)(Starcher, J., concurring in part and dissenting in part)(Maynard, J., concurring)(Albright, J., concurring in part and dissenting in part)(October 25, 2007). Reversing an order of the Human Rights Commission finding liability for harassment and discrimination, after an administrative law judge found no discrimination. Holding that the HRC erred by imposing liability upon Colgan, where the company took appropriate and decisive action as soon as policy was followed and management was informed of the discriminatory conduct. Further holding that the HRC erred in concluding that Colgan Air failed to prove a legitimate non discriminatory reason for the termination, in light of clear evidence of inability to safely maneuver an airplane.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33355.htm


FAMILY :: Attorney fees and expert witness costs, intransigence

LANDIS v. LANDIS, No. 33333 (Per Curiam)(November 8, 2007). Reversing an order of the Circuit Court of Raleigh County that denied a request for attorney's fees and expert witness costs exceeding $300,000 in a divorce proceeding. Holding that the lower courts erred in relying solely on the appellant's ability to pay. After considering the entire record, concluding that there is substantial merit in the assertion that the appellee's intransigence increased the cost of litigation, and ordering the appellee to be responsible for one-half of all the appellant's attorney and expert witness fees and costs.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33333.htm


FAMILY :: Enterprise goodwill

HELFER v. HELFER, No. 33348 (Per Curiam)(November 8, 2007)(rehearing denied, January 10, 2008). Reversing an order of the Circuit Court of Ohio County that denied a petition for appeal from a family court order regarding equitable distribution. Holding that the family court in failing to take into account the intangible asset of enterprise goodwill in the chiropractic practice. Remanding for further proceedings.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33348.htm


FAMILY :: Care givers were not psychological co-parents

IN RE: VISITATION AND CUSTODY OF SENTURI N.S.V, No. 33334 (Per Curiam)(October 25, 2007). Reversing an order of the Circuit Court of Cabell County that affirmed a family court ruling that the appellees, who sometimes cared for the child, were psychological co-parents of the minor child and had a shared parenting arrangement with the mother. Holding that simply caring for a child is not enough to bestow upon a care giver psychological parent status. Further commenting on the lower courts' complete and utter disregard of the mother's parental rights, remanding for restoration of full custodial rights.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33334.htm


FAMILY, ABUSE & NEGLECT, ADOPTION :: Voluntary relinquishment of parental rights

IN RE: CESAR L., No. 33317 (DAVIS, C.J.)(Starcher, J., concurring in part and dissenting in part)(Albright, J., concurring in part and dissenting in part)(Benjamin, J., concurring)(October 24, 2007). Affirming orders of the Circuit Court of Berkeley County that:(1) determined a mother lacked standing to request a modification of disposition under W. Va. Code 49-6-6 because she had voluntarily relinquished her parental rights; and (2) found that the mother's relinquishment was voluntary and free of fraud and duress and was therefore a valid voluntary relinquishment under W. Va. Code 49-6-7. Setting forth six new syllabus points, and holding that voluntary relinquishment acts as a complete forfeiture of parental status.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33317.htm


FAMILY, CHILD SUPPORT :: Accrual of child support by incarcerated persons

ADKINS v. ADKINS, No. 33312 (ALBRIGHT, J.)(November 8, 2007). Granting mixed relief from an order of the Family Court of Cabell County, in a direct appeal from family court. In syllabus points 3 through 8, setting forth significant guidance for determining the support obligation of an incarcerated person, including a determination that this obligation should be set in light of that person's actual earnings while incarcerated and other assets practically available to provide support.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33312.htm


FAMILY, PROCEDURE :: Alimony arrearage suit not barred

CHILD SUPPORT ENF. DIV. and VARNEY v. VARNEY, No. 33332 (Per Curiam)(Maynard, J., disqualified)(Janes, Judge, by temporary assignment)(November 21, 2007). Reversing an order of the Circuit Court of Mingo County that denied an appeal from a family court order that determined the statute of limitations applies to bar a suit to enforce a decretal judgment for alimony arrearages. Holding that because a writ of execution was issued within the ten-year statute of limitations attached to the decretal judgment, the statute began to run anew from the return day of the execution.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33332.htm


FAMILY, PROCEDURE, EQUITY :: Unclean hands

FOSTER v. FOSTER, No. 33301 (Per Curiam)(November 20, 2007). Reversing an order of the Circuit Court of Raleigh County that determined that a petition to recover overpayment of just under $3,500 in child support was filed outside the statute of limitations. Declining to reverse on grounds asserted, instead applying the equitable doctrine of unclean hands to preclude recovery, where the appellee was previously able to avoid paying over $30,000 in child support by successfully asserting that the appellant was barred from collecting on the decretal judgment that was more than ten years old.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33301.htm


FAMILY, PROCEDURE :: Timeliness of appeal to circuit court

WASHINGTON v. WASHINGTON, No. 32980 (Per Curiam)(October 26, 2007). Affirming an order of the Circuit Court of Harrison County that refused a family court appeal on the basis of having been untimely filed. Holding that the circuit court properly raised, sua sponte, the timeliness of the appeal, which was filed one day beyond the thirty-day deadline. Although an opinion letter was late in being made a part of the official court file, the litigant had the letter in his possession, so the letter's late arrival to the court record had no impact on the ability to timely file an appeal. Finding no evidence that the pro se party, who later obtained counsel, was improperly hindered in exercising his right to access the courts.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/32980.htm


HEALTH CARE :: Incest conviction precludes operating legally unlicensed health care home

PLUMLEY v. WEST VIRGINIA DEPT. of HEALTH and HUMAN RESOURCES/OFFICE of HEALTH FACILITY LICENSURE and CERTIFICATION, No. 33287 (BENJAMIN, J.)(Starcher, J., dissenting)(Maynard, J., concurring)(Albright, J., dissenting)(October 12, 2007). Reversing an order of the Circuit Court of Cabell County that reversed an administrative order requiring closure of a "legally unlicensed health care home" as defined in West Virginia Code of State Rules 64-50-2.6. Holding that a conviction for felony incest, as revealed by a CIB background check, is sufficient to trigger a regulatory bar on operating such a health care home, because the conviction constitutes a crime relevant for the provision of care to a dependent population within the scope of W. Va. C.S.R. 64-50-4.4 (1999).

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33287.htm


INSURANCE :: Tractor on loading approach, vehicle in use

KEEFER v. FERRELL; FARM FAMILY CASUALTY CO., Appellant, No. 33310 (Per Curiam)(Starcher, J., concurring)(Benjamin, J., dissenting)(November 8, 2007). Affirming an order of the Circuit Court of Mason County that found insurance coverage to exist under an automobile policy that covered a truck being approached by a tractor for loading onto a trailer attached to the truck. Holding that the factual circumstances establish "use" of the vehicle for purpose of coverage.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33310.htm


INSURANCE, WORKERS' COMPENSATION :: Exclusion in custom-designed state policy

REED v. ORME, No. 33291 (Per Curiam)(Starcher, J., dissenting)(Albright, J., dissenting)(November 8, 2007). Affirming an order of the Circuit Court of Logan County that determined that no insurance coverage existed under a Board of Education policy to cover injuries sustained by a bus driver in an accident, where the bus driver collected workers' compensation benefits. Holding that the circuit court properly determined that this was a custom-designed policy such that the workers' compensation exclusion could apply.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33291.htm


INSURANCE, WRONGFUL DEATH :: No UIM coverage for personal representative of uninsured decedent

STRUM, et al. v. SWANSON, No. 33285 (ALBRIGHT, J.)(October 26, 2007). Reversing an order of the Circuit Court of Tyler County that granted summary judgment to the plaintiffs in an underinsured motorist claim. Construing statutory language and adopting the majority view in the nation by holding that: "The West Virginia wrongful death statute, West Virginia Code 55-7-5 (1931) (Repl. Vol. 2000), does not support a cause of action seeking benefits through a claimant's personal UIM insurance policy, where that claimant is acting in his or her legal capacity as a personal representative of an estate and the decedent was not insured under the UIM policy at issue." Syl. Pt. 5.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33285.htm


LOCAL GOVERNMENT, JAILS, PROCEDURE :: Regional jail fees

STATE EX REL. REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY v. COUNTY COMMISSION OF CABELL COUNTY, et al., No. 33347 (ALBRIGHT, J.)(Starcher, J., concurring)(November 21, 2007)(Rehearing denied, January 10, 2008). Granting a moulded writ of mandamus in a dispute over payments by a county commission to the regional jail authority to cover the daily cost of housing county inmates. Addressing the Court's authority to issue moulded writ relief in cases having statewide impact and affecting the public interest, and holding that the county commission is obligated to pay assessed per diem charges, but that the regional jail authority must promptly meet and formulate a proposed legislative rule as provided for by W. Va. Code 31-20-10(h), addressing issues of uniformity, calculation of the per diem rate, and further clarifying the documentation surrounding any future rate increases.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33347.htm


MOTOR VEHICLES, CRIMINAL :: Post-Stump pleas of nolo contendere

STATE EX REL. BAKER v. BOLYARD, Dir. Div. Motor Vehicles, No. 33303 (BENJAMIN, J.)(Starcher, J., dissenting)(Maynard, J., concurring)(October 30, 2007). Affirming an order of the Circuit Court of Greenbrier County that affirmed an administrative decision imposing a six-month driver's license revocation on December 9, 2005, upon receipt of a notification for magistrate court that the defendant entered a nolo contendere plea to first offense DUI. The fact that the plea took place between the Court's prior decision in STATE EX REL STUMP v. JOHNSON, 217 W.Va. 733, 619 S.E.2d 246 (2005) and the May 15, 2006 amendment to W. Va. C.S.R. 91-5-14.1 means that the revocation was automatic upon notification of the nolo contendere plea.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33303.htm


MUNICIPALITIES, COUNTIES, PROPERTY :: Entry of annexation orders

STATE EX REL. CITY OF CHARLES TOWN v. COUNTY COMMISSION OF JEFFERSON COUNTY, et al., Nos. 33454, 33455, 33456 and 33457 (Per Curiam)(Starcher, J., concurring in part and dissenting in part)(Albright, J., concurring)(Benjamin, J., concurring)(October 26, 2007). Granting petition for writ of mandamus to compel the county commission to approve an annexation order presented by a municipality pursuant to W. Va. Code 8-6-4. Holding that the language of the statute clearly and unambiguously requires a county commission to enter an annexation order when a municipality certifies that the annexation petition is sufficient, and that the commission has no independent duty to determine whether or not the annexation complies with the applicable statutes.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33454.htm


PROFESSIONAL DISCIPLINE :: Reciprocal discipline imposed

LAWYER DISCIPLINARY BOARD v. CANDACE K. CALHOUN, No. 33067 (Per Curiam). Imposing indefinite suspension of license to practice law pursuant to the reciprocal discipline provisions of Rule 3.20 of the Rules of Lawyer Disciplinary Procedure, after a final order was entered suspending Candace Calhoun from the practice of law in that state. Holding that none of the Rule 3.20(e) exceptions exist that would prevent imposing the same discipline as the foreign jurisdiction.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33067.htm


PROPERTY :: Partition by sale

MORTON v. UNKNOWN HEIRS OF VAN CAMP, et al., LINDA KESSLER ARCHER, Appellant, No. 33341 (Per Curiam)(Starcher, J., dissenting)(Albright, J., dissenting)(Benjamin, J., concurring). Affirming an order of the Circuit Court of Kanawha County that directed the sale of property wherein the appellant owns an undivided one-seventh interest. Holding that the circuit court was correct because the property cannot be conveniently partitioned in kind, the interests of the majority of the property owners will be promoted by a sale and the interests of the appellant will not be prejudiced as she will receive one-seventh of the proceeds.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33341.htm


PROPERTY, CONTRACTS :: No damages for timber removal during option to purchase land

AMERICAN CANADIAN EXPEDITIONS, LTD. V. THE GAULEY RIVER CORPORATION, et al., No. 33246 (ALBRIGHT, J.)(November 21, 2007). Affirming an order of the Circuit Court of Fayette County that granted summary judgment to landowners, after determining that the appellant did not have an equitable or legal right to seek damages for timber removed from property during the time appellant held an option to purchase the land. "During the option period of a real estate option contract, the optionee has no ownership interest in the property, or the timber on it, absent specific language in the option contract to the contrary." Syl. Pt. 5. "The basic enforceable personal rights of the holder of an option to purchase real estate include the right to purchase the property at a certain price within a prescribed period. As with any contract, additional terms and conditions may be negotiated by the parties and enforcement of those terms and conditions would be governed by contract law." Syl. Pt. 6. Although as with any contract, additional terms and conditions could be negotiated and subsequently governed by contract law, no such conditions were applicable.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33246.htm


PROPERTY, LOCAL GOVERNMENT :: Flood control allegations prematurely dismissed

CANTLEY, et al. v. LINCOLN COUNTY COMMISSION, No. 33345 (Per Curiam)(November 8, 2007). Reversing an order of the Circuit Court of Lincoln County that granted a 12(b)(6) motion to dismiss the Lincoln County Commission in an action seeking recovery for flood damages incurred because of the commission's alleged failure to take flood control measures on the Mud River. Holding that dismissal was inappropriate given the allegations of the complaint, which, in this context, must be taken as true, namely that the commission has a duty to maintain the river and failed in that duty despite repeated warnings.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33345.htm


PROPERTY, MUNICIPALITIES :: Ambiguous right-of-way, easement by equitable estoppel

FOLIO v. CITY OF CLARSKBURG -AND- GRANDEOTTO, INC. v. CITY OF CLARKSBURG, Nos. 33295 and 33302 (Per Curiam)(Benjamin, J., dissenting)(November 9, 2007). Reversing orders of the Circuit Court of Harrison County involving a dispute over the sale of property to the City of Clarksburg and right-of-way interests, where the circuit court granted summary judgment in favor of the City. Holding that the circuit court properly determined that agreements were ambiguous and inadequate to convey certain rights-of-way, and that even if valid, the rights-of-way were extinguished based upon the doctrine of merger. Nevertheless holding that summary judgment was premature because a genuine issue of material fact exists regarding whether an easement was created by equitable estoppel as a result of representations made by the City at the time of the conveyance. Further holding that summary judgment was premature with regard to the claim of negligent misrepresentation. Remanding for further proceedings.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33295.htm


PROPERTY, TRUSTS :: Mistake in trust formation

PARKER v. ESTATE OF BEALER, et al., No. 33339 (Per Curiam)(November 21, 2007)(Rehearing denied, January 10, 2008). Reversing an order of the Circuit Court of Hampshire County, and holding that the appellant estate should have been granted summary judgment in a dispute over the status of a Hampshire County farm. Applying Florida law to conclude that there was a mistake in the formation of a charitable trust intended to hold the farm; the trust was intended to preserve the farm, but the appellant was wrongly advised regarding the five percent distribution rule applicable to charitable trusts, which, if applied, would not have preserved the farm as intended. In light of the mistake in the trust's formation, the farm not a part of the trust.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33339.htm


TORTS :: Continuing tort rule clarified

ROBERTS v. WEST VIRGINIA AMERCIAN WATER CO., et al., No. 33326 (ALBRIGHT, J.)(Starcher, J., dissenting)(November 8, 2007). Affirming an order of the Circuit Court of Kanawha County that granted summary judgment to defendants on statute of limitations grounds in a property damage action. Holding that neither the discovery rule nor the continuous tort doctrine tolled the statute of limitations, where the plaintiff claimed damages for the single, discrete act of constructing and installing the waterline and not for any continuing malfunction of the waterline or further misconduct by the defendants. Holding in syllabus point 4: "The distinguishing aspect of a continuing tort with respect to negligence actions is continuing tortious conduct, that is, a continuing violation of a duty owed the person alleging injury, rather than continuing damages emanating from a discrete tortious act."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33326.htm


TORTS :: Facts determine applicability of MPLA, not type of claim asserted; dismissal too harsh

BLANKENSHIP, et al. v. ETHICON, Inc., et al., No. 33224 (DAVIS, C.J.)(Starcher, J., concurring in part and dissenting in part)(Benjamin, J., concurring)(October 12, 2007). Granting mixed relief from an order of the Circuit Court of Kanawha County that dismissed an action alleging damages from implantation of contaminated sutures, upon the circuit court's determination that the plaintiffs failed to comply with the pre-suit requirements of the Medical Professional Liability Act. Holding, in syllabus point 4, that: "The failure to plead a claim as governed by the Medical Professional Liability Act, W. Va. Code 55-7B-1, et seq., does not preclude application of the Act. Where the alleged tortious acts or omissions are committed by a health care provider within the context of the rendering of 'health care' as defined by W. Va. Code 55-7B-2(e) (2006) (Supp. 2007), the Act applies regardless of how the claims have been pled." Further holding that dismissal was too harsh a sanction, and remanding to allow the plaintiffs to amend their complaint and otherwise comply with the MPLA.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33224.htm



TORTS, CONTRACTS :: Counterclaims partially reinstated

HIGHMARK WEST VIRGINIA v. JAMIE, No. 33309 (Per Curiam)(November 20, 2007). Granting mixed relief from an order of the Circuit Court of Wood County that dismissed a second amended counterclaim pursuant to Rule 12(b)(6), in a dispute between a physician and an insurer over certain billing items and alleged overpayments. Holding that the circuit court properly dismissed several counts, but that the circuit court erred in dismissing three counts in the nature of breach of contract claims, and a fraud count, and remanding for further proceedings.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33309.htm


TORTS, EVIDENCE :: Scientific evidence at summary judgment stage

SAN FRANCISCO v. WENDY'S INTERNATIONAL, INC., No. 33284 (STARCHER, J.)(Davis, C.J., concurring)(Benjamin, J., dissenting)(November 21, 2007). Reversing an order of the Circuit Court of Kanawha County that granted summary judgment to defendant in a case alleging food poisoning. Holding that the circuit court improperly excluded the testimony of two experts. "Because the summary judgment process does not conform well to the discipline and analysis that DAUBERT v. MERRELL DOW PHARMACEUTICALS, INC., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and WILT v. BURACKER, 191 W.Va. 39, 443 S.E.2d 196 (1993) impose, the Daubert/Wilt regime should be employed only with great care and circumspection at the summary judgment stage. Courts must be cautious - except when defects are obvious on the face of a proffered expert opinion - not to exclude debatable scientific evidence without affording the proponent of the evidence adequate opportunity to defend its admissibility. Given the plain language of the West Virginia Rules of Evidence, the side trying to defend the admission of expert evidence must be given an adequate chance to do so." Syl. Pt. 4. Further holding that a medical opinion based upon a properly performed differential diagnosis may satisfy the reliability prong of Rule 702, and that such opinions should be analyzed on a case-by-case basis.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33284.htm


TORTS, EVIDENCE :: Expert improperly excluded

STATE EX REL. JONES, et al. v. RECHT, et al., No. 33383 (Per Curiam)(Davis, C.J., concurring)(Benjamin, J., concurring)(November 8, 2007). Granting a moulded writ to prevent enforcement of an order of the Circuit Court of Ohio County that excluded certain medical expert testimony in a personal injury action. The circuit court held that a neurosurgeon's testimony regarding the biomechanical elements of the accident were enmeshed to the point where the expert must be excluded. Holding that the expert's testimony could have been strictly limited to medical testimony, and the issues regarding force of impact be redirected to experts qualified in biomechanics or accident reconstruction.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33383.htm


TORTS, EVIDENCE :: Summary judgment proper in absence of causation expert

GIBSON v. LITTLE GENERAL STORES, INC., No. 33313 (Per Curiam)(November 8, 2007). Affirming an order of the Circuit Court of Greenbrier County that granted summary judgment to the defendant in an action alleging damages from a malfunctioning gas pump. Holding that the circuit court properly granted summary judgment where the plaintiff was unable to produce expert testimony regarding pump malfunction and there was no allegation of res ipsa loquitur in the complaint.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33313.htm


TORTS, EVIDENCE :: Expert medical testimony

WALKER v. SHARMA, No. 33308 (ALBRIGHT, J.)(Davis, C.J., concurring)(Benjamin, J., dissenting)(November 8, 2007). Reversing an order of the Circuit Court of Cabell County that granted judgment as a matter of law to the defendant after determining that the plaintiff's expert could not testify as to the national standard of care because he was unfamiliar with the specific method to dilate urethral strictures at hospitals not located in Columbus, Ohio, where he practices. Holding that the trial court erred in determining that an experienced, board-certified urologist could not testify as to the applicable standard of care. Clarifying the weight and admissibility of expert testimony in such cases in syllabus points 3 and 4: "Following a trial court's decision that a physician is qualified to offer expert testimony in a given field, issues that arise as to the physician's personal use of a specific technique or procedure to which he or she seeks to offer expert testimony go only to the weight to be attached to that testimony and not to its admissibility." Syl. Pt. 3. "Where there are several approved methods of performing a particular medical procedure, the fact that a physician who is qualified to offer an expert opinion based on field of practice and expertise utilizes a different method than the doctor whose actions are at issue does not prevent the physician from offering testimony on the applicable standard of care in a medical malpractice case." Syl. Pt. 4.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33308.htm


TORTS, LOCAL GOVERNMENT :: Threshold immunity a jury issue

KELLEY, et al. v. THE CITY OF WILLIAMSON, et al., No. 33311 (Per Curiam)(Davis, C.J., dissenting)(Benjamin, J., dissenting)(November 21, 2007). Reversing an order of the Circuit Court of Mingo County that granted summary judgment to the City and a police officer in an action by citizens who had been arrested and who alleged outrage, battery, false swearing, negligent hiring and intentional infliction of emotional distress. Holding that the circuit court erred in granting summary judgment because factual disputes exist regarding the statutory threshold immunity questions, and the jury should decide the issue of negligence under W. Va. Code 29-12A-4(c)(2) and bad faith, etc. under W. Va. Code 29-12A-5(b).

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33311.htm


TORTS, LOCAL GOVERNMENT :: PSD immunity

ZIRKLE v. ELKINS ROAD PUBLIC SERVICE DISTRICT, No. 33307 (Per Curiam)(November 15, 2007). Affirming an order of the Circuit Court of Upshur County that dismissed an action against the public service district for failure to state a cognizable claim under the West Virginia Tort Claims and Insurance Reform Act. Concluding that the allegations were based on intentional acts that were related to the PSD's licensing and permitting functions. Such acts are included in W. Va. Code 29-12A-5(a)(9), and when read in concert with the provisions of W. Va. Code 29-12A-4(b)(1), the PSD has immunity in this case.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33307.htm


TORTS, PENSIONS, FAMILY :: Improper distribution prior to retirement

BROWN v. CITY OF FAIRMONT, et al., No. 33354 (Per Curiam)(November 21, 2007). Granting mixed relief from an order of the Circuit Court of Marion County that granted summary judgment for defendants in an action alleging improper distribution of a fireman's pension to the fireman's ex-wife. Holding that distribution of proceeds to alternate payee prior to retirement was improper because clear statutory requirements had not been met. Affirming the circuit court's determination with regard to allegations of breach of fiduciary duty and related claims.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33354.htm


TORTS, PROCEDURE :: Recovery of pre-majority medical expenses

STATE EX REL. PACKARD v. PERRY, No. 33214 (BENJAMIN, J.)(Maynard, J., disqualified)(Egnor, Judge, by temporary assignment)(November 21, 2007). Granting a moulded writ of prohibition to prevent enforcement of orders of the Circuit Court of Logan County. Holding that the circuit court properly denied leave to amend the complaint. Further holding that the circuit court erred in determining that only the petitioner, through an independent action, may seek recovery for pre-majority medical expenses incurred in the treatment of her son during alleged malpractice. "The right to maintain an action to recover pre-majority medical expenses incurred as a result of a minor's personal injuries belongs to both the minor and the minor's parents, but under no circumstances will double recovery be allowed. Thus, a procedural bar that prevents the parents from maintaining an action will not affect their minor child's right to recover. To the extent that MCCALLAM v. HOPE NATURAL GAS, 93 W.Va. 426, 117 S.E. 148 (1923); BARKER v. SAUNDERS, 116 W. Va. 548, 182 S.E. 289 (1935); GLOVER v. NARICK, 184 W. Va. 381, 400 S.E.2d 816 (1990), and other cases are inconsistent with this holding, they are overruled."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33214.htm


TORTS, PROCEDURE :: False arrest claim untimely filed

CANTERBURY v. LAIRD, Sheriff, et al., No. 33132 (Per Curiam)(November 21, 2007). Affirming an order of the Circuit Court of Fayette County that granted summary judgment to defendants. Holding that the false arrest claim was filed outside the statute of limitations, even if the limitations period was tolled by ongoing criminal proceedings. Further holding that an error regarding the malicious prosecution claim was waived because it was argued in the brief, but not assigned as error in the petition for appeal.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33132.htm


TORTS, PROCEDURE :: MPLA challenge judicially estopped

RIGGS v. WEST VIRGINIA UNIVERSITY HOSP., Inc., No. 33335 (Per Curiam)(Davis, C.J., concurring)(Starcher, J., dissenting)(Albright, J., dissenting)(November 20, 2007). Affirming an order of the Circuit Court of Monongalia County that reduced a $10 million non-economic damages award to $1 million in accordance with W. Va. Code 55-7B-8. Rejecting appellant's assertion that the MPLA cap should not apply because the claims arise from the hospital's failure to control an infectious outbreak, not from health care rendered to a patient. In light of the fact that the case was pled and tried as an MPLA case, applying judicial estoppel to conclude that the appellant may not change the theory of the case after the return of the jury's verdict in order to avoid the application of the MPLA's non-economic damages cap.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33335.htm


TORTS, PROCEDURE :: Premature challenge to mass tort trial plan

STATE EX REL. CHEMTALL INC., et al. v. MADDEN, et al., No. 33380 (Per Curiam)(November 15, 2007). Denying a writ of prohibition sought by defendants to prevent enforcement of an order permitting a water treatment worker to intervene in a toxic exposure action involving coal treatment plant workers. Holding that intervention was not precluded by the Court's prior opinion in this matter, and that the challenge is also premature. Further rejecting a constitutional challenge to the bifurcated trial plan, stating that "a decision on the constitutionality of punitive damages at this point would amount to nothing more than an exercise in speculation." Further declining to address the claim that punitive damages are not available in cases in which only medical monitoring damages are sought because appellate review is better left to a review of the verdict after complete development of all the facts and testimony.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/fall07/33380.htm


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