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SUMMARY OF RECENT OPINIONS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
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January 13, 2006 Issue #83
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This issue covers 27 opinions released in late November 2005 for cases argued during the September 2005 term of court.

The January 2006 term of court began on Tuesday of this week, with a Motion Docket and Argument Docket. Please visit the calendar page for more details about the docket and conference schedule.
http://www.state.wv.us/wvsca/calendar/calendar.htm

REQUEST FOR PUBLIC COMMENT ON PROPOSED COURT RULES: The Court has requested public comment on a number of proposed amendments to court rules, including changes to criminal rules relating to joint trials, and amendments to trial court rules relating to timelines for preparation of proposed orders in criminal cases. The comment period on these two proposals closes on January 30. See the Clerk's Office page for details.
http://www.state.wv.us/wvsca/clerk.htm

Individuals who wish to subscribe to this list may do so by visiting:
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Best regards,

Rory Perry
Clerk of Court

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CIVIL RIGHTS :: Restoration of ability to possess firearm after misdemeanor domestic violence conviction

IN RE: PETITION OF ROBERT A. PARSONS FOR RESTORATION OF CIVIL RIGHTS, No. 32662 (MAYNARD, J.)(November 29, 2005). Affirming an order of the Circuit Court of Ohio County that denied a petition for restoration of the ability to possess a firearm, by a person who had been convicted of a misdemeanor crime of domestic violence. Holding that the circuit court was correct, because West Virginia law precludes granting the request where granting the request would violate federal law. Holding that the restoration exception in 18 U.S.C. 922(g)(9) is not applicable, because a person convicted of a misdemeanor crime of domestic violence does not lose his or her civil rights, which, in this context, refers to the rights to vote, hold elective office, and sit on a jury. Further holding that the misdemeanor was committed against a person enumerated in 18 U.S.C. 921(a)(33)(A)(ii), and the petition was therefore properly denied.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32662.htm


CRIMINAL :: Remarks about mercy were error, but not enough to warrant reversal

STATE v. MARVIN STEVE MILLS, No. 32551 (Per Curiam)(November 17, 2005). Affirming a conviction for first degree murder, without mercy, obtained in the Circuit Court of Raleigh County upon retrial following reversal of the previous conviction. See STATE v. MILLS, 211 W.Va. 532, 566 S.E.2d 891 (2002). Holding that the lower court did not err in failing to strike certain jurors for cause, who were apparently confused by the jury questionnaire, and who after inquiry by the circuit court demonstrated no bias or prejudice. Holding that the prosecutor's remarks in closing argument--to the effect that in the absence of a death penalty in West Virginia, the defendant was already receiving mercy--were clear error and should not be repeated. However, the remarks were made in response to previous argument by defense counsel, and, in light of the totality of the circumstances, no clear prejudice or manifest injustice was created. Further rejecting additional errors regarding news media presence at a jury view of the crime scene, and admission of testimony regarding the victim's fear of the appellant.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32551.htm



CRIMINAL, PROCEDURE :: Mid-trial decision to pursue alternate theory

STATE v. RONNIE LYNN LEGG, No. 32500 (STARCHER, J.)(November 21, 2005). Affirming a conviction of the felony offense of wrongful removal of timber, following a jury trial in the Circuit Court of Greenbrier County. Holding that the circuit court was correct to instruct the jury that it could find the appellant guilty as a principal in the second degree, or "aider and abettor." Declining to return to outdated common-law rule that principals in the second degree must be indicted as such -- STATE v. PETRY, 166 W. Va. 153, 273 S.E.2d 346 (1980) and its progeny "should put all defendants in West Virginia on constructive notice that an aiding and abetting instruction may be requested, even in the absence of an indictment thereon . . . ." Setting forth factors to consider for the purpose of determining whether a defendant has suffered actual prejudice due to the prosecution's belated injection of an alternative theory, and holding that the appellant did not demonstrate that he suffered actual prejudice. Further holding that an issue raised for the first time in the appellant's brief was not properly preserved for appeal and would not be considered.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32500.htm


CRIMINAL, PROCEDURE, ATTORNEYS :: Disqualification of defense counsel

STATE EX REL. BLAKE v. HATCHER, No. 32747 (BENJAMIN, J.)(Davis, J., concurring)(November 18, 2005). Granting a moulded writ of prohibition in a dispute over the State's motion to disqualify defense counsel in a criminal action, where a conflict of interest was alleged due to defense counsel's prior representation of a State's witness and the witness's relatives in various criminal and civil proceedings. Holding that the State has standing to seek disqualification of defense counsel under certain circumstances, and setting forth the standard of proof and factors to be considered by the circuit court in determining whether a potential conflict of interest should overcome the presumption in favor of a defendant's choice of counsel. Remanding for further proceedings to determine whether a conflict warrants disqualification.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32747.htm


CRIMINAL, PROCEDURE :: Recidivist bifurcation

STATE v. REED, No. 32610 (Per Curiam)(Davis, J. concurring)(November 29, 2005). Affirming an order of the Circuit Court of Cabell County that denied a motion to bifurcate the issue of the validity of prior convictions in a recidivist proceeding, in accordance with STATE v. McCRAINE, 214 W. Va. 188, 588 S.E.2d 177 (2003), released shortly after the trial. Holding that McCRAINE is not retroactive, and even if it was, defendant's argument fails under harmless error analysis.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32610.htm


CRIMINAL, HABEAS CORPUS :: Numerous errors rejected

STATE EX REL. WENSELL v. TRENT, No. 32567 (Per Curiam) (November 29, 2005). Affirming an order of the Circuit Court of Monongalia County that denied a petition for habeas corpus relief. Rejecting ineffective assistance of counsel and 404(b) errors.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32567.htm


CRIMINAL :: Denial of closing argument at bench trial

STATE v. WEBSTER, No. 32510 (MAYNARD, J.)(November 29, 2005). Reversing an order of the Circuit Court of Greenbrier County finding the appellant guilty, following a bench trial, of the offense of domestic battery. Holding, in syllabus point 2, that: "A defendant in a criminal case has a right to present a closing argument at trial and the failure of a court to allow the defendant the opportunity to present an oral closing argument at trial constitutes reversible error that cannot be cured upon appeal by remand of the case for the purpose of permitting an oral closing argument post-trial." Remanded for a new trial.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32510.htm


CRIMINAL :: Rejection of plea; gruesome photos; Allen charge

STATE v. WALDRON, No. 32693 (Per Curiam)(Albright, C.J., and Starcher, J., dissenting)(November 30, 2005). Affirming an order of the Circuit Court of McDowell County sentencing the appellant to seven years in the penitentiary upon his conviction for voluntary manslaughter. Holding that the circuit court was within its discretion to reject a proposed misdemeanor plea, and properly admitted five out of ten photos that were objected to as gruesome. Further holding that the failure to preserve certain notes taken by a courtroom observer was not error, and that the circuit court did not err in giving the jury a modified Allen charge that was in line with STATE v. BLESSING, 175 W. Va. 132, 331 S.E.2d 863 (1985).

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32693.htm


CRIMINAL, HABEAS CORPUS :: Habeas denial upheld

STATE EX REL. QUINONES v. RUBENSTEIN, COMM'R DEP'T. OF CORR., No. 32661 (Per Curiam)(November 30, 2005). Affirming an order of the Circuit Court of Fayette County that denied habeas corpus relief sought on the basis of ineffective assistance of counsel and failure to strike jurors for cause.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32661.htm


CRIMINAL :: Life with mercy affirmed; prayer during closing argument

STATE V. McCRACKEN, No. 32665 (Per Curiam)(November 30, 2005). Affirming a conviction for three counts of first degree murder, with mercy, obtained following a jury trial in the Circuit Court of Marshall County. Rejecting alleged errors involving the admission of a demonstration of gasoline combustibility; in the admission of pre-trial statements made to authorities; and denial of motions for judgment of acquittal. Holding that the prosecutor's recital of the "Now I Lay Me Down To Sleep" prayer twice during closing arguments was improper and not based upon properly introduced evidence, but did not, in the circumstances presented, result in clear prejudice or manifest injustice under STATE v. SUGG, 193 W.Va. 388, 456 S.E.2d 469 (1995).

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32665.htm


FAMILY, JUDGMENTS :: Ten-year limitation period not tolled by administrative child support collection activities

HEDRICK v. HEDRICK, No. 32571 (Per Curiam)(November 17, 2005). Reversing an order of the Circuit Court of Kanawha County. Holding that the circuit court erred in finding that the ten-year statute of limitations applicable to child support obligations is tolled by certain administrative collection efforts, in light of Syllabus point 5 of SHAFFER v. STANLEY, 215 W.Va. 58, 593 S.E.2d 629 (2003), which held otherwise. Directing the Bureau of Child Support Enforcement to refund improperly collected funds.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32571.htm


HEALTH CARE, ADMINISTRATIVE :: Replacement hospital certificate of need standards

FAIRMONT GEN. HOSP., INC. v. UNITED HOSP. CTR., INC. AND WV HEALTH CARE AUTH., Nos. 32669 & 32670 (BENJAMIN, J.)(Davis, J., concurring)(Starcher, J., dissenting)(November 29, 2005). Reversing an order of the Circuit Court of Marion County that had reversed an administrative decision to grant a certificate of need to construct a replacement hospital. Holding that a five-mile limitation relied upon by the circuit court is invalid, for variety of reasons set forth in syllabus point 2: "Section I(W) of the Certificate of Need Standards of the State Health Plan for the Renovation-Replacement of Acute Care Facilities and Services approved on January 7, 1997 is invalid insofar as it requires the replacement facility be within five miles of the original facility. The five mile limitation is invalid because it (1) conflicts with W. Va. Code 16-2D-6(d) (1999); (2) is a criterion not included within the criteria for certificate of need reviews set forth in W. Va. Code 16-2D-6(a) (1999) or in 65 C.S.R. 7-12; (3) was promulgated by the executive department of state government without clear legislative public policy objectives and guidelines; (4) precludes a balanced consideration of the statutory criteria for certificate of need reviews as set forth in W. Va. Code § 16-2D-6 (1999); (5) conflicts with, rather than supports, the findings and declarations of the Legislature set forth in W. Va. Code 16-29B-1 (1997) and W. Va. Code 16-2D-1 (1977); and (6) is arbitrary and capricious." Remanded for issuance of a certificate of need.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32669.htm


INSURANCE :: Offers of uninsured and underinsured motorist coverage

NEWARK INSURANCE CO. v. BROWN, et al., No. 32566 (DAVIS, J.)(November 18, 2005). Affirming an order of the Circuit Court of Fayette County in a dispute over insurance coverage. Holding that the circuit court properly determined that, at the time the appellant purchased and later renewed a policy of umbrella insurance, W. Va. Code 33-6-31(b) did not require the insurer to offer uninsured or underinsured motorist coverage in an amount up to the liability limits of the policy.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32566.htm


INSURANCE, PROCEDURE :: Disclosure of information about reserves

STATE EX REL. ERIE INSURANCE v. MAZZONE, No. 32777 (ALBRIGHT, C.J.)(Davis, J. concurring)(November 30, 2005). Granting a writ of prohibition to prevent enforcement of an order entered in a third-party bad faith action that directed disclosure of documents from the claims file containing reserve information detailing amounts and dates on which those amounts were set. Noting petitioner's argument that the reserve information is opinion work product warranting heightened protection from disclosure, but granting the requested writ on other grounds: that the circuit court failed to resolve the threshold issue of relevancy. Clarifying the standards to be applied in making that determination, in syllabus points 4 and 5: "[4] When presented with a challenge to discovery of insurance reserves information, the trial court is required under the provisions of Rule 26(b)(1) of the West Virginia Rules of Civil Procedure to make a preliminary determination of whether the requested information is relevant in that it is admissible or is reasonably calculated to lead to the discovery of admissible evidence. [5] In making a determination in the context of discovery about the relevancy of insurance reserves information, the trial could should take into account the nature of the case, the methods used by the insurer to set the reserves and the purpose for which the information is sought, and only grant requests for disclosure when its findings of fact and conclusions of law support a determination that the specific facts of the claim in the case before it directly and primarily influenced the setting of the reserves in question."

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32777.htm


JUDGMENTS, PROCEDURE :: Post-judgment collection directed at IRA

BURGE v. FORTNEY, et al., No. 32522 (DAVIS, J.)(Starcher, J., concurring)(November 17, 2005). Affirming an order of the Circuit Court of Marion County. Holding that the writ of execution and suggestion directed toward an Individual Retirement Account was valid. The applicable statutory exemption in W.Va. Code 38-8-1 of IRA accounts from "attachment" applies only to that specific pre-judgment process, and does not extend to execution and suggestion. Although the statute has since been amended to exempt IRA accounts from both pre- and post-judgment satisfaction procedures, the version of the statute in effect at the time of the events under review by the circuit court was clear, and properly applied.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32522.htm


MOTOR VEHICLES, ADMINISTRATIVE, PROCEDURE :: Suspension in absence of conviction

IN RE: PET. OF SCOTT A. McKINNEY FOR JUDICIAL REVIEW OF ADMIN. DECISION MADE BY F. DOUGLAS STUMP, COMM'R, DEP'T OF TRANSP., DIV. OF MOTOR VEHICLES, No. 32748 (MAYNARD, J.) (Albright, C.J., and Starcher, J., concurring in part and dissenting in part)(November 29, 2005). Reversing an order of the Circuit Court of Raleigh County that had reversed an administrative driver's license revocation. Holding, in syllabus point 2, that: "Pursuant to W.Va. Code 17B-3-6(a)(1) (1997), the West Virginia Division of Motor Vehicles is authorized to suspend the driver's license of any person without preliminary hearing upon a showing by its records or other sufficient evidence that the licensee committed an offense for which mandatory revocation of a driver's license is required upon conviction, regardless of whether the licensee is convicted of the offense." Further holding, in syllabus point 3, that: "The purpose of this State's administrative driver's license revocation procedures is to protect innocent persons by removing intoxicated drivers from the public roadways as quickly as possible."

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32748.htm


MOTOR VEHICLES, ADMINISTRATIVE, PROCEDURE :: Ten-year revocation upheld

McVEY V. PRITT, COMM'R OF DIV. MOTOR VEHICLES, No. 32581 (BENJAMIN, J.)(Davis, J. concurring)(Starcher, J. dissenting)(November 30, 2005). Reversing an order of the Circuit Court of Mercer County that had reversed a ten-year administrative driver's license revocation of an individual who had previously been suspended for DUI at age 16 and was subsequently arrested for DUI at age 21. Holding, in syllabus point 1, that: "The plain language of W. Va. Code 17C-5A-2(i) requires the Commissioner of the Division of Motor Vehicles to revoke a person's driver's license for a period of ten years when that person's driver's license has been previously suspended or revoked within the ten years immediately preceding the date of arrest for driving while under the influence of alcohol upon which the subsequent revocation is based." Stating that: "It may be argued that it is unduly harsh for a twenty-one year old person to have his or her driver's license revoked for ten years . . . . That, however, is a policy matter within the province of the Legislature, not this Court, to decide."

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32581.htm


MUNICIPALITIES, CONSTITUTIONAL, GOVERNMENTAL IMMUNITY :: Refund of licensing fees

STANDARD DISTRIBUTING, INC., et al. v. CITY of CHARLESTON, No. 32707 (Per Curiam)(November 29, 2005). Affirming an order of the Circuit Court of Kanawha County. Holding that the payment of liquor license fees annually from 1982-2002 was voluntary, and that the appellant was not entitled to a refund, though the fee was declared improper in 1993. Rejecting due process and equal protection arguments, in light of the meaningful predeprivation relief afforded by the city code -- relief that was not sought by the appellants. Further holding that the city is immune from the appellant's allegation that the city was negligent, pursuant to the Governmental Tort Claims and Insurance Reform Act, which provides political subdivisions immunity for a loss or claim resulting from licensing functions.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32707.htm


PROCEDURE :: Impleader properly denied

STATE EX REL. THRASHER ENGINEERING, INC. v. FOX, et al., No. 32774 (Per Curiam)(November 17, 2005). In a civil dispute over an allegedly defective sewage collection system, denying a writ of prohibition sought to prevent enforcement of an order denying a defendant's request to file a third party complaint against certain state agencies for inchoate contribution. Holding that impleader was properly denied under Rule 14(a) where granting the request would confuse the issues and cause unnecessary delay that would unduly prejudice the original parties.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32774.htm


PROCEDURE :: Reinstatement after 41(b) dismissal

TOLLIVER v. MAXEY, No. 32557 (Per Curiam)(Starcher, J., dissenting)(November 23, 2005). Affirming an order of the Circuit Court of Raleigh County that denied a request to reinstate a civil action following Rule 41(b) dismissal. Holding that the circuit court correctly determined that no good cause existed for reinstatement, where the Rule 60(b)(6) motion was filed more than three terms after new counsel was retained in 2002, after plaintiffs learned that suit had been dismissed in 1999 due to non-activity by prior counsel.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32557.htm


PROPERTY, PROCEDURE :: Failure to qualify as real party in interest

HUFFMAN v. CRINER, No. 32706 (Per Curiam)(November 30, 2005). Affirming an order of the Circuit Court of Kanawha County that dismissed an action for property damages. Holding that the circuit court properly dismissed the action, after having given the plaintiff a reasonable time to substitute a real party in interest under R.Civ. P. 17(a).

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32706.htm


PROPERTY, PROCEDURE :: County zoning administration and appeals; providing public water

JEFFERSON UTILITIES, INC. v. JEFFERSON COUNTY BD. OF ZONING APPEALS, No. 32559
-AND- KLETTER, et al. v. JEFFERSON COUNTY BD. OF ZONING APPEALS AND RODERICK, et al., BUCKEYE DEVELOPMENT, No. 32560 -AND- KLETTER, et al. v. JEFFERSON COUNTY BD. OF ZONING APPEALS AND RODERICK, et al., No. 32561 (ALBRIGHT, C.J.)(November 30, 2005). Reversing orders of the Circuit Court of Jefferson County relating to county zoning administration and appeals. Holding that the circuit court erred in determining that the zoning administrator is prohibited from applying any discretion in the exercise of his or her duties, and further erred in determining that the Board of Zoning Appeals is barred from deferring to findings made by the zoning administrator. See syllabus points 4 and 5: "[4] The critical factor in determining whether the use of some limited discretion by a zoning administrator requires the additional protections that typically attach in evidentiary proceedings is whether the determination being made is one that qualifies as administrative or quasi-judicial in nature. [5] The provisions of West Virginia Code 8-24-55 (1969) (Repl. Vol. 2003), which set forth the authority and power of a board of zoning appeals, do not expressly or implicitly prevent that administrative body from utilizing principles of deference typically employed in administrative proceedings in reviewing determinations reached by a zoning administrator." Further holding that the appellant Jefferson Utilities, as a public utility within the meaning of West Virginia law, is providing "public water" within the meaning of the local law at issue, as stated in syllabus point 3: "A privately owned entity engaged in providing water services to the public that qualifies as a 'public utility' or 'utility' under state law is entitled to be viewed as providing 'public water' for purposes of calculating the requisite land evaluation and site assessment phase of the development review system required by the Jefferson County Zoning and Development Review Ordinance."

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32559.htm


TAXATION, PROPERTY :: 501(c)(3) tax-exempt status

APPALACHIAN EMERGENCY MEDICAL SERVS., INC. v. STATE TAX COMM'R., No. 32695 (Per Curiam)(Starcher, J., concurring)(November 29, 2005). Reversing an order of the Circuit Court of Cabell County that had affirmed a State Tax Commissioner ruling that certain property did not qualify for an exemption from the ad valorem property tax. Holding that the property held by AEM is exempt from ad valorem property tax, where the property is leased and all proceeds received as landlord are used to make mortgage payments and held in escrow for maintenance, and is therefore not being leased out for profit so as to preclude tax-exempt status.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32695.htm


TORTS, EVIDENCE :: Expert witness civil immunity

WILSON v. BERNET, et al., No. 32578 (DAVIS, J.)(Starcher, J., concurring)(November 18, 2005). Answering a certified question from the Circuit Court of Kanawha County concerning whether a cause of action for tortious interference with a parental or custodial relationship may be maintained against an adverse expert witness based upon the witness's testimony and participation in a child custody and visitation proceeding. Holding, in syllabus point 2, that "An adverse expert witness enjoys civil immunity for his/her testimony and/or participation in judicial proceedings where such testimony and/or participation are relevant to said judicial proceedings." Further holding, in syllabus 3, that: "No cause of action for tortious interference with parental or custodial relationship may be maintained against an adverse expert witness based upon his/her expert testimony and/or participation in a child custody and visitation proceeding."

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32578.htm


TORTS, EVIDENCE :: Sham affidavit rule applied

CALHOUN v. TRAYLOR, et al., No. 32526 (Per Curiam)(Davis, J. concurring)(Starcher, J., concurring in part and dissenting in part)(Maynard, J., concurring in part and dissenting in part)(November 17, 2005). Affirming an order of the Circuit Court of Cabell County that granted partial summary judgment in favor of a defendant in a medical malpractice case. Holding that the trial court properly refused to consider a supplemental expert report by an expert for the plaintiff that contradicted prior testimony, and failed to satisfy the standard set forth in syllabus point 4 of KISER v. CAUDILL, 215 W.Va. 403, 599 S.E.2d 826 (2004).

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32526.htm


TORTS, PROCEDURE :: Scope of MPLA; BOGGS clarified

GRAY v. MENA, et al., No. 32507 (ALBRIGHT, C.J.)(Davis, J. concurring)(November 30, 2005). Reversing an order of the Circuit Court of Mercer County that dismissed--for failure to comply with the pre-suit requirements of the West Virginia Medical Professional Liability Act--a civil action alleging that a physician physically assaulted the plaintiff. Clarifying certain language in a prior case that may have been read to exclude intentional torts from the ambit of the MPLA, and holding, in syllabus point 4, that: "This Court's opinion in BOGGS v. CAMDEN-CLARK MEMORIAL HOSPITAL CORP., 216 W.Va. 656, 609 S.E.2d 917 (2004), is clarified by recognizing that the West Virginia Legislature's definition of medical professional liability, found in West Virginia Code 55-7B-2(i) (2003) (Supp. 2005), includes liability for damages resulting from the death or injury of a person for *any* tort based upon health care services rendered or which should have been rendered. To the extent that BOGGS suggested otherwise, it is modified." In light of the holdings in HINCHMAN v. GILLETTE, 217 W.Va. 378, 618 S.E.2d 387 (2005), holding that the plaintiff should be given an opportunity to cure any pre-suit notice defects. In light of the exceedingly fact-driven nature of resolution of issues in this area, expressly cautioning all litigants preparing a complaint in such matters to be diligent in adhering to the MPLA where the healthcare provider's action could possibly be construed as having occurred within the context of rendering health care services.

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32507.htm


WILLS AND ESTATES :: Educational scholarship trust; cleansing; rule against perpetuities

UNITED BANK, INC., AS TRUSTEE v. BLOSSER, et al., No. 32691 (DAVIS, J.)(Benjamin, J. disqualified)(Recht, Judge sitting by temporary assignment)(November 29, 2005). Affirming decisions of the Circuit Court of Wood County, wherein the circuit court determined that venue was proper in Wood County, and that trustees had acted properly in removing a family preference from the trust established for educational scholarships. Holding that venue was proper in Wood County, in light of uncontradicted evidence that the trustee's main operations and the trust res were both located in that county. Further holding, in syllabus point 4, that: "A trust that is created to provide educational scholarships to an indefinite class of beneficiaries, but which also contains a preference for certain family members of the grantor, is a valid charitable trust pursuant to W. Va. Code 35-2-1 (1923) (Repl. Vol. 2005), and is exempt from the application of the rule against perpetuities." Finally holding that the trustee properly removed a family preference from the trust, in order to cleanse the trust for federal tax purposes, as required by West Virginia Code 35-2-9(a).

To view the full text of the majority opinion, go to:
http://www.state.wv.us/wvsca/docs/Fall05/32691.htm


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