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SUMMARY OF RECENT OPINIONS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
http://www.state.wv.us/wvsca/clerk.htm
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June 10, 2009 Issue #99
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This issue covers the 7 opinions released between May 20 and June 9, 2009.


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Rory Perry
Clerk of Court

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ADMINISTRATIVE, SURFACE MINING :: Definition of permit area

HUFFMAN v. GOALS COAL CO., et al., No. 34138 (KETCHUM, J.)(Benjamin, Chief Justice, disqualified)(Fox, Judge, by temporary assignment)(June 9, 2009). Affirming an order of the Circuit Court of Kanawha County that upheld an administrative decision by the West Virginia Surface Mine Board. Addressing the narrow question of whether the permit area of a surface mine operation is defined solely by the maps submitted with the original permit application or whether the markers placed at the mine site are also relevant to the determination. Holding that the statutory provisions at issue are clear, and a public policy determination is not the province of the judicial branch. Concluding, in syllabus point 3, that: "According to the provisions of W.Va. Code, 22-3-3(q) [2000] and 30 U.S.C. 1291(17) [1998], a surface mine 'permit area' is the area that is indicated on the approved map submitted with the permit application and is identifiable by appropriate markers on the mine site."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring09/34138.htm


ADOPTION, ABUSE & NEGLECT :: No statutory preference

STATE EX REL. KUTIL, et al. v. BLAKE, No. 34618 (Per Curiam)(June 5, 2009). Granting a writ of prohibition to prevent enforcement of an order of the Circuit Court of Fayette County that directed a child to be removed from a temporary foster home and placed in a household interested in adoption that is a "traditional family" having a mother and a father rather than a household headed by a same sex couple or a single person. Holding that the statutory provision governing adoption is clear and unambiguous, and that there is no "legislatively assigned preference for adoption into a traditional home or any statutory definition of a traditional home for adoption purposes" in West Virginia Code 48-22-201. Given no legislative differentiation between categories of eligible candidates for adoption, such policy determination is a legislative prerogative, outside the purview of the courts. Applying the best interest of the child standard, and concluding that there was no evidence supporting a legal reason to remove the child from the only home she has known.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring09/34618.htm


CONTRACTS, AGENCY, PROPERTY :: Duty of loyalty requires return of business records

TIMBERLINE FOUR SEASONS RESORT MANAGEMENT CO., INC., et al. v. HERLAN, et al., No. 34151 (Per Curiam)(June 9, 2009). Reversing an order of the Circuit Court of Tucker County that denied injunctive relief and denied a request to require return of certain business records removed from the resort by a real estate broker. Holding that the circuit court abused its discretion in determining that an agency relationship did not exist given the level of control that the resort exercised. Rejecting the broker's argument that the West Virginia Real Estate License Act prevented her from returning the business records, given the presence of the agency relationship and the duty of the loyalty to the principal. Finally concluding that in light of the duty of loyalty, it is not prudent for an agent to be permitted to retain the telephone number of the principal upon termination of the agency relationship.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring09/34151.htm


CRIMINAL, EVIDENCE :: Self-defense, relevance of prior abuse, self-defense against co-occupants

STATE v. TANYA D. HARDEN, No. 34268 (KETCHUM, J.)(Benjamin, J., dissenting)(June 4, 2009). Vacating a conviction of first degree murder obtained following a jury trial in the Circuit Court of Cabell County. Holding that the State failed to prove beyond a reasonable doubt that the defendant--who shot and killed her husband after "a night of domestic terror"--did not act in self-defense. Re-examining prior law, and concluding that evidence of prior abuse is relevant in the context of an assertion of self-defense or, where self-defense is not established, to negate a necessary element such as malice or intent. Setting forth a two-fold inquiry in syllabus point 3 for determining whether circumstances formed a reasonable basis for the defendant to believe that he or she was at imminent risk of serious bodily injury or death at the hands of the decedent: "First, the defendant's belief must be subjectively reasonable, which is to say that the defendant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the defendant's belief must be objectively reasonable when considering all of the circumstances surrounding the defendant's use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our holding in Syllabus Point 6 of STATE v. MCMILLION, 104 W.Va. 1, 138 S.E. 732 (1927), is expressly overruled." Further clarifying the law of self-defense against a co-occupant in syllabus point 5: "An occupant who is, without provocation, attacked in his or her home, dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be upon the premises, may invoke the law of self-defense and in such circumstances use deadly force, without retreating, where the occupant reasonably believes, and does believe, that he or she is at imminent risk of death or serious bodily injury. In determining whether the circumstances formed a reasonable basis for the occupant to believe that he or she was at imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry is two-fold. First, the occupant's belief must be subjectively reasonable, which is to say that the occupant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the occupant's belief must be objectively reasonable when considering all of the circumstances surrounding the occupant's use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our decision in Syllabus Point 2, STATE v. CRAWFORD, 66 W.Va. 114, 66 S.E. 110 (1909), is expressly overruled." Holding that under the circumstances of the case, the defendant's use of deadly force to defend herself, without retreating, was objectively reasonable and the State failed to prove otherwise. Remanding for entry of a judgment of acquittal.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/Spring09/34268.htm


CRIMINAL, PROCEDURE :: Pre-indictment delay

STATE EX REL. JAMES L. KNOTTS v. FACEMIRE, No. 34647 (McHUGH, J.)(Workman, J., disqualified)(Sadler, J., by temporary assignment)(June 5, 2009). Granting a moulded writ of prohibition where there was a thirteen-year period between when the State was first made aware of alleged criminal offenses and when it decided to charge the defendant. Re-examining prior cases involving pre-indictment delay and overruling prior cases applying a presumption of prejudice in certain instances. Syl. Pt. 2. Holding that a defendant must demonstrate substantial evidence of actual prejudice that proves the defendant was "meaningfully impaired in his ability to defend against the state's charges to such an extent that the disposition of the criminal proceeding was or will likely be affected." Syl. Pt. 4. Setting forth a balancing test to be applied, in syllabus point 3: "In determining whether preindictment delay violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, the initial burden is on the defendant to show that actual prejudice has resulted from the delay. Once that showing has been made, the trial court must then balance the resulting prejudice against the reasonableness of the delay. In balancing these competing interests, the core inquiry is whether the government's decision to prosecute after substantial delay violates fundamental notions of justice or the community's sense of fair play. To the extent our prior decision in HUNDLEY v. ASHWORTH, 181 W.Va. 379, 382 S.E.2d 573 (1989), and its progeny are inconsistent with this ruling, they are expressly overruled." Remanding for further proceedings.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/Spring09/34647.htm


PROCEDURE, TORTS :: Mistrial and new trial distinguished, closing arguments

SMITH v. ANDREINI, et al., No. 34271 (McHUGH, J.)(Workman, J., concurring in part and dissenting in part)(Ketchum, J., concurring in part and dissenting in part)(June 5, 2009). Reversing an order of the Circuit Court of Ohio County that granted a motion for mistrial approximately twenty months after a verdict was rendered in favor of the defendant in a medical malpractice case. Examining the basis for appellate jurisdiction--an issue not raised or addressed by the parties--and holding in syllabus point 5, that: " An order declaring a mistrial is not an appealable order; however, an order granting a motion for new trial is an appealable order. When a court improperly grants an order declaring a mistrial after the conclusion of a trial and after a verdict has been rendered, this Court may consider such an order to be an order granting a new trial, which is appealable to this Court." Cautioning both lawyers and trial courts that a motion for mistrial should be ruled upon expeditiously, "at the very least, shortly after the motion is made and, at the most, prior to conclusion of the trial and rendering of a verdict." Holding that the circuit court abused its discretion in granting a new trial, where, viewed in context, defense counsel occasionally used sarcasm and exaggeration in an otherwise traditional summation of the evidence during closing argument.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/Spring09/34271.htm


WRONGFUL DEATH, PROCEDURE :: Discovery rule not applicable

STUYVESANT v. PRESTON COUNTY COMMISSION, No. 34137 (Per Curiam)(June 9, 2009). Affirming an order of the Circuit Court of Preston County that dismissed a wrongful death action as having been filed outside the statute of limitations period. The decedent died an apparent suicide in the Preston County Jail, and his estate learned after his death of a medical bill incurred prior to the suicide, and sought to extend the statute of limitations to be contemporaneous with the discovery of the medical bill. Holding that the circuit court was correct in determining that the discovery rule was not applicable under the circumstances of the case, where the appellant failed to meet part four of the test articulated in BRADSHAW, by not alleging any causal connection between a wrongful act and the decedent's death.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/Spring09/34137.htm



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