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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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August 21, 2007
Issue #92
==============================
This issue covers the 45 remaining opinions issued in the January
2007 term of court.

The first day of arguments in the September term of court will
take place on September 11.

Best regards,

Rory Perry
Clerk of Court
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ATTORNEYS, CONTRACTS :: Fee arrangement not unreasonable

SCHRADER BYRD & COMPANION, P.L.L.C. v. MARKS, et al., No. 33184
(STARCHER, J.)(Maynard, J., and Benjamin, J.,
dissenting)(Albright, J., concurring)(April 5, 2007). Affirming
a judgment of the Circuit Court of Ohio County that concluded
that a law firm's fee arrangement with its clients was fair,
reasonable and consistent with the original retainer agreement.
Holding, in syllabus point 2, that: "An attorney fee payment
arrangement whereby the attorney receives a percentage of funds
as they are periodically received by the attorney's client is
not, as such, either suspect or impermissible. Factors to be
considered in determining an attorney's entitlement to receive
fees in such a fashion include: (1) the terms of the fee
agreement between the attorney and the client; and (2) whether,
when viewed in the context of the entire representation of the
client by the attorney, the fees are fair and reasonable."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33184.htm


CONSTITUTIONAL :: Legislature may define lawful hunting

HARTLEY HILL HUNT CLUB, et al., v. COUNTY COMMISSION OF RITCHIE
COUNTY, et al., No. 33176 (STARCHER, J.)(Benjamin, J.,
disqualified)(Cookman, Judge, by temporary assignment)(May 11,
2007). Affirming an order of the Circuit Court of Ritchie County
that upheld the constitutionality of W.Va. Code 20-2-5(28), which
prohibits hunting on Sunday in certain circumstances. Holding,
in syllabus point 5, that: "Article III, Section 22 of the West
Virginia Constitution protects a person's right to keep and bear
arms for lawful hunting. This clause preserves the State's right,
through the exercise of its police power, to enact reasonable
laws defining what forms of hunting are lawful."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33176.htm


CONTRACTS, HOSPITALS, ANTITRUST, STATUTORY CONSTRUCTION ::
Restraint of trade in contracts with providers

KESSEL, et al. v. MONONGALIA GENERAL HOSPITAL CO., et al., No.
33096 (BENJAMIN, J.)(Starcher, J., dissenting)(June 6, 2007).
Affirming an order of the Circuit Court of Monongalia County that
granted partial summary judgment to defendants with regard to all
claims under state antitrust law, arising out of plaintiffs'
allegation that certain contracts for operative anesthesiology
services at the hospital constituted a restraint of trade.
Setting forth guidelines for determining when courts should
comply with legislative direction to construe a particular
statutory scheme in harmony with federal statutes and federal
judicial interpretations. Holding that the circuit court
correctly applied federal law. Rejecting appellant's contention
that W. Va. C.S.R. 142-15-3 elevates tying arrangements to a per
se violation of West Virginia antitrust law.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33096.htm


CRIMINAL, ATTORNEYS :: Conflict of interest and ineffective
assistance of counsel

STATE EX REL. CARROLL EUGENE HUMPHRIES v. THOMAS MCBRIDE, WARDEN,
No. 33103 (Per Curiam)(April 19, 2007). Petitioner appealed an
order of the Circuit Court of Greenbrier County that denied his
petition for a writ of habeas corpus. Petitioner was convicted by
a jury on July 30, 1999, of one count of felony offense of
accessory before the fact to murder of the first degree, and one
count of the felony offense of conspiracy to commit murder.
Reversing and remanding for a new trial, in light of the conflict
of interest of defense counsel and ineffective assistance of
counsel with regard to several issues throughout trial, as well
as a Sixth Amendment violation at trial.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33103.htm


CRIMINAL, EVIDENCE :: Late disclosure of rebuttal witness merited
mistrial

STATE v. JULIAN R. SMITH, No. 33171 (Per Curiam)(Maynard, J.,
dissenting)(Albright, J., concurring)(June 13, 2007). Reversing
conviction of the offense of aggravated robbery following a jury
trial in the Circuit Court of Kanawha County. Holding that a
witness, disclosed after the defendant testified, who recanted an
undisclosed pretrial statement that supported the defendant's
defense of alibi, was prejudicial. Holding that "manifest
necessity for a mistrial is demonstrated in the record in the
following respects: (1) the State failed to provide notice of the
rebuttal witness whose testimony was elicited to contradict
Smith's alibi defense; (2) the State advised Smith that it was
unaware of any evidence favorable to Smith and, further, failed
to disclose to Smith the pretrial statement of the rebuttal
witness which initially had supported Smith's alibi defense; and
(3) although stating to the Circuit Court that no formal plea
agreement had been made with the rebuttal witness, the State
failed to disclose that the witness had been offered the
possibility of entering a plea to unaggravated robbery in
exchange for his truthful testimony at trial."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33171.htm


CRIMINAL, EVIDENCE :: Failure to provide pre-trial notice of
404(b) material, dismissed charges as 404(b) material

STATE v. JEREMIAH DAVID MONGOLD, No. 33222 (DAVIS,
C.J.)(Starcher, J., concurring in part and dissenting in
part)(June 6, 2007). Affirming a conviction for death of a child
by parent, guardian or custodian by child abuse, obtained
following a jury trial in the Circuit Court of Hampshire County.
Holding that the trial court did not err in admitting related
incident evidence that was not disclosed prior to trial, in light
of the fact that the evidence was used to rebut defendant's
character testimony. Setting forth a good cause standard for
failure to disclose in syllabus point 3: "Rule 404(b) of the West
Virginia Rules of Evidence requires the prosecution in a criminal
case to disclose evidence of other crimes, wrongs or acts prior
to trial if such disclosure has been requested by the accused;
however, upon reasonable notice such evidence may be disclosed
for the first time during trial upon a showing of good cause for
failure to provide the requested pretrial notice." Further
holding in syllabus point 4 that dismissal or acquittal of a
charge does not prohibit its use as 404(b) material.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33222.htm


CRIMINAL, EVIDENCE :: Trial court improperly questioned witnesses

STATE v. GERALD THOMPSON, JR., No. 33097 (STARCHER, J.)(May 15,
2007). Defendant appealed a Clay County jury conviction for
"attempting to operate or operating a clandestine drug lab."
Reversing the conviction in light of the prejudice created by the
repeated questioning of witnesses by the trial judge. Setting
forth standards for evaluating whether a judge's partiality
became a factor in the determination of the jury so that the
defendant did not receive a fair trial.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33097.htm


CRIMINAL, EVIDENCE :: Imputed knowledge of Brady material

STATE v. DENVER A. YOUNGBLOOD, JR., No. 31765 (DAVIS,
C.J.)(Maynard, J., dissenting)(Starcher, J.,
concurring)(Benjamin, J., dissenting)(May 10, 2007). On remand
from the Supreme Court of the United States, reversing a jury
conviction obtained in the Circuit Court of Morgan County.
Holding that a prosecutor's duty to disclose Brady material
includes disclosure of evidence that is known only to a police
investigator and not to the prosecutor. Further clarifying the
three components of a constitutional due process violation under
Brrady, and holding that the failure to disclose constituted a
due process violation. Remanded for new trial.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/31765.htm


CRIMINAL, MOTOR VEHICLES :: Driving privilege suspension applies
to operating an ATV

STATE ex rel. SERGENT v. NIBERT, et al., No. 33327 (ALBRIGHT,
J.)(June 6, 2007). Granting a writ of prohibition sought by the
prosecuting attorney of Roane County to prevent dismissal of an
indictment for driving with a revoked license. Clarifying that
administrative license suspension or revocation involves loss of
both the license and privilege to operate a motor vehicle on
public highways, and holding, in syllabus point 3 that "An
individual who operates an all-terrain vehicle on a public
highway of this state may be prosecuted for committing the
offense of driving while suspended or revoked under the
provisions of West Virginia Code 17B-4-3 (2004)."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33327.htm


CRIMINAL, PROCEDURE :: Moot because sentence discharged

STATE v. BRYAN ANTHONY MERRITT, No. 33105 (Per Curiam)(April 19,
2007). Merritt appealed an order of the Circuit Court of Wood
County that denied his petition for modification of sentence.
Dismissed as moot in light of discharge of the 45-day sentence,
and the absence of sufficient collateral consequences or great
public interest that would justify relief. The underlying issue
Ð whether the magistrate and circuit courts erred in not granting
Merritt a stay Ð is of unique concern to Merritt.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33105.htm


CRIMINAL, PROCEDURE :: Compelled testimony when witness is to
invoke Fifth Amendment

STATE v. ANTHONY RAY WHITT, No. 33039 (ALBRIGHT, J.)(Maynard, J.,
dissenting)(Benjamin, J., concurring)(April 6, 2007). Anthony
Ray Whitt appealed his McDowell County conviction for second
degree murder. Holding that the circuit court erred by refusing
to permit a co-defendant to be called to the stand who indicated
her intention, through counsel, to invoke the Fifth Amendment if
called to testify. Setting forth guidelines for establishing a
violation of the right to compulsory process afforded criminal
defendants in article III, section 14 of the West Virginia
Constitution, and further setting forth guidelines regarding the
exception to the general rule against not allowing a witness to
take the stand solely to invoke the Fifth Amendment privilege
against self-incrimination, providing that the circuit court has
discretion to permit such compulsory process in certain
circumstances. Remanded for a new trial.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33039.htm


CRIMINAL :: Sentence properly corrected

STATE ex rel. CORNELL F. DAYE v. McBRIDE, Warden, Nos. 33100 &
33101 (STARCHER, J.)(June 27, 2007). Appellant sought review of
an order of the Circuit Court of Raleigh County in a habeas
corpus proceeding, arguing that the circuit court improperly
corrected a sentence in order to permit enhancement. Holding, in
syllabus point 5, that: "When any person is convicted of an
offense under the Uniform Controlled Substances Act (W.Va Code,
Chapter 60A) and is subject to confinement in the state
correctional facility therefor and it is further determined, as
provided in W.Va. Code, 61-11-19 (1943), that such person has
been before convicted in the United States of a crime or crimes,
including crimes under the Uniform Controlled Substances Act
(W.Va. Code, Chapter 60A), punishable by confinement in a
penitentiary, the court shall sentence the person to confinement
in the state correctional facility pursuant to the provisions of
W.Va. Code, 61-11-18 (2000), notwithstanding the second or
subsequent offense provisions of W.Va. Code, 60A-4-408 (1971)."
Holding that the circuit court properly corrected the illegal
sentence originally imposed, and rejecting the appellant's
argument that the enhancement provisions of the Uniform
Controlled Substances Act should take precedence over the general
habitual criminal offender statue. Remanded for appointment of
counsel and further proceedings regarding remaining assignments
of error.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33100.htm


CRIMINAL :: Probation revocation affirmed

STATE v. JAMES K. HOSBY, No. 33247 (Per Curiam)(June 7, 2007).
Affirming an order of the Circuit Court of Jefferson County that
revoked probation and ordered appellant to serve the remainder of
a one-year jail sentence received after a guilty plea to the
misdemeanor offense of failure to pay child support. Holding
that the circuit court properly determined that the appellant
failed to follow the conditions of probation.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33247.htm


CRIMINAL :: Actual or constructive possession of drug-making
materials or equipment

STATE v. MICHAEL CUMMINGS, No. 33223 (BENJAMIN, J.)(Starcher, J.,
concurring)(Maynard, J., dissenting)(Albright, J.,
concurring)(June 6, 2007). Reversing felony convictions for
attempting to operate a clandestine drug lab and conspiracy to
attempt to operate a clandestine drug lab obtained following a
jury trial in the Circuit Court of Roane County. Rejecting the
State's argument that both intent and possession could be
inferred from the circumstances, which involved evidence that the
appellant was operating a vehicle, which was not owned by him,
and which contained cold medicine and matches in the rear
passenger area. Holding, in syllabus point 6, that: "In order to
sustain a conviction for violation of W. Va. Code 60A-4- 411
(2003), by assembling any chemicals or equipment for the purpose
of manufacturing methamphetamine, the State must prove beyond a
reasonable doubt that the defendant had actual or constructive
possession over the chemicals and/or equipment. In order to
establish constructive possession where the defendant is present
in a vehicle wherein such materials are found, the State must
prove beyond a reasonable doubt that the defendant had knowledge
of the presence of the chemicals and/or equipment to be used for
the purposes of manufacturing methamphetamine and that such items
were subject to the defendant's dominion and control."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33223.htm


CRIMINAL :: Jury instruction on attempt properly refused

STATE v. ERIC DELBERT JETT, No. 33198 (Per Curiam)(May 17, 2007).
Defendant appealed a Kanawha County Circuit Court conviction and
sentence for operating or attempting to operate a clandestine
drug laboratory under West Virginia Code 60A-4-411. Affirming
the conviction, and holding that the circuit court properly
refused to give defendant's requested jury instruction defining
the term "attempt."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33198.htm


CRIMINAL :: Child neglect resulting in death conviction affirmed

STATE v. ADONIS RAY THOMPSON, No. 33206 (Per Curiam)(May 11,
2007). Defendant appealed Circuit Court of Kanawha County jury
conviction for child neglect causing death, after his two-year
old died from hyperthermia after being left in an infant car seat
in defendant's car over four hours on a day when outside
temperatures reached in excess of eighty degrees. Holding that
it was not plain error for the trial court not to instruct the
jury on the defense of unconsciousness or automatism, and further
holding that the evidence was sufficient to support the
conviction.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33206.htm


CRIMINAL :: Voluntary manslaughter conviction affirmed

STATE v. VALERIE WHITTAKER, No. 33037 (Per Curiam)(Maynard, J.,
concurring)(Starcher, J., dissenting)(Albright, J.,
dissenting)(April 5, 2007). Defendant appealed her Mercer County
jury conviction for voluntary manslaughter. Holding that the
circuit court properly refused to grant a judgment of acquittal
based upon self-defense; that the circuit court properly limited
the testimony of certain defense witnesses; and that the circuit
court properly handled other evidentiary matters, including
admitting a statement made by the defendant.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33037.htm


CRIMINAL :: Incorrect jury instruction on element of intent

STATE v. WADE C. DAVIS, No. 33191 (Per Curiam)(Maynard, J.,
dissenting)(Benjamin, J., dissenting)(April 5, 2007). Defendant
appealed Circuit Court of Kanawha County jury conviction and
sentence for second degree murder. Reversing and remanding for
new trial, and holding that the circuit court erred in failing to
properly instruct the jury that "intent" is an element of second
degree murder, after the jury specifically inquired as to the
difference between second degree murder and involuntary
manslaughter.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33191.htm


EMPLOYMENT :: Wrongful discharge claims preempted

LONTZ, et al. v. THARP, et al., No. 33243 (Per Curiam)(June 13,
2007). Affirming an order of the Circuit Court of Ohio County
that dismissed a complaint alleging wrongful discharge. Holding
that the circuit court properly determined that the action is
preempted by the National Labor Relations Act. Appellants were
supervisors at a Holiday Inn who engaged in union organizing
activities. Holding that the National Labor Relations Board
provides the best forum for resolving the issues, including the
first-impression issue of whether the NLRA applies to activities
by supervisors.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33243.htm


EMPLOYMENT, EQUITY, RETIREMENT BENEFITS :: Equitable estoppel
applied to government agency

HUDKINS v. STATE of WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT
BOARD, No. 33245 (Per Curiam)(June 13, 2007). Affirming an order
of the Circuit Court of Kanawha County that reversed the
retirement board's administrative decision to deny the appellee's
right to convert unused sick leave to retirement service credit.
Although such credit was later precluded by rule, holding that
the doctrine of equitable estoppel should be applied to permit
the appellee to claim the service credit, in light of the fact
that the appellee relied on representations of a retirement board
employee to her detriment, all limited to the specific facts of
the case.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33245.htm


EMPLOYMENT, PROCEDURE :: Res judicata not established in
grievance appeal

STEPHEN ANTOLINI, ET AL. v. WV DIVISION OF NATURAL RESOURCES, No.
33182 (Per Curiam)(April 10, 2007). Three state employees
appealed an order of the Circuit Court of Kanawha County that
dismissed their grievance appeal upon determining that their
claims were barred by res judicata. Reversing the circuit court's
decision in light of the fact that in the companion case, the
Grant County Circuit Court lacked jurisdiction to hear the appeal
of the Level IV grievance, and in the absence of a final
adjudication on the merits by a court having jurisdiction, the
first element of res judicata is not satisfied. Remanded for
further proceedings.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33182.htm


FAMILY :: Vacating post-majority college expense obligations
without agreement

CAROLE E. DAMRON SHORTT v. FREDERICK CECIL DAMRON, No. 33185
(STARCHER, J.)(May 11, 2007). Former husband appealed an order
of the Circuit Court of Kanawha County that affirmed a family
court decision requiring him to pay expenses for the post high
school education of his child. Clarifying the relationship
between two versions of a statute relating to such orders in
syllabus point 2: "W.Va. Code, 48-2-15d [1993] was amended in
1994 (using language now codified at W.Va. Code, 48-11-103(c)
[2002]) to authorize courts to vacate the provisions of certain
divorce orders entered under the authority of W.Va. Code,
48-2-15d [1993] that required a parent to pay for a child's
post-majority college expenses without the agreement of the
parent." Holding that the order in question was not subject to
vacation, and therefore declining to reach the issue of whether
the separation agreement was enforceable.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33185.htm


FAMILY, EVIDENCE, PROCEDURE :: Admission of hearsay testimony,
harmless error

IN RE: MARRIAGE OF MISTY D.G. v. RODNEY L.F., No. 33226 (Per
Curiam)(June 13, 2007). Reversing an order of the Circuit Court
of Raleigh County that reversed a family court decision. Holding
that the circuit court erred in concluding that the family court
improperly considered inadmissible hearsay and expert witness
evidence in rendering its decision to modify child custody.
Holding that the family court properly admitted certain testimony
by a counselor under the medical treatment exception to the
hearsay rule, and that other improperly admitted testimony was
harmless and did not affect the ultimate outcome. Remanded for
reinstatement of family court's decision.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33226.htm


INSURANCE, DUE PROCESS :: Non-renewal of physician insurance by
state actor subject to due process

ZALESKI v. WEST VIRGINIA PHYSICIAN'S MUTUAL INSURANCE CO., No.
33242 (ALBRIGHT, J.)(June 27, 2007). Granting mixed relief from
a final order of the Circuit Court of Ohio County in a suit
involving reinstatement of medical malpractice insurance
coverage. Holding that the physician's mutual insurance company
formed pursuant to W. Va. Code 33-20F-1 et seq. is a state actor
for due process purposes, and that physicians are entitled to due
process protection in seeking review of any non-renewal decision
made by the company. (Syl. Pts. 3 and 6.) Setting forth process
required in syllabus point 8: "Being a state actor for due
process purposes, West Virginia Physicians' Mutual Insurance
Company is required to make available to parties affected by its
non- renewal decisions a review process that minimally includes:
notice of the non-renewal which conforms with the requirements of
West Virginia Code 33-20C-4(a) and which includes the reasons for
non-renewal; hearing before an unbiased hearing examiner;
reasonable time in which to prepare to rebut the charges;
opportunity to have retained counsel at any hearings on the
charges; opportunity to present relevant evidence which includes
calling and cross-examining witnesses; and preservation of an
adequate record of the review proceedings." Directing that the
matter be remanded to the physician's mutual for a proper
non-renewal hearing.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33242.htm


PROCEDURE :: Timing of counterclaim and third-party complaint

WALKER v. OPTION ONE MORTGAGE CORP., et al., No. 33225 (Per
Curiam)(Davis, C.J., dissenting)(Starcher, J., dissenting)(June
7, 2007). Reversing an order of the Circuit Court of Kanawha
County that denied defendants below leave to file a counterclaim
and third party complaint. Holding that the circuit court erred
in denying leave to file a compulsory counterclaim, in the
absence of evidence that the appellants were dilatory. Further
holding that permitting the filing of a third-party complaint
would not cause prejudice, and would promote judicial economy.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33225.htm


PROCEDURE, FOIA :: Prevailing pro se litigant entitled to costs,
but not attorney fees

JOHN SMITH v. DR. DJ BRADLEY, PRESIDENT, FAIRMONT STATE
UNIVERSITY, No. 33156 (Per Curiam)(April 13, 2007). Smith
appealed an order of the Circuit Court of Marion County that
dismissed his FOIA case against Fairmont State University after
it granted him substantial relief: copies of other professors'
performance evaluations with only certain personal information
redacted. The circuit court also denied Smith's request for
attorney's fees and costs because he was a pro se litigant, among
other reasons. Granting mixed relief and affirming the circuit
court's decision to provide evaluations in redacted form, and
affirming denial of attorney's fees. Reversing the circuit
court's determination that Smith was not entitled to court costs,
and remanding for further consideration of an appropriate award
of costs under W.Va. Code 29B-1-7.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33156.htm


PROCEDURE, MOTOR VEHICLES :: Dismissed as untimely filed, Rule
60(b) motion doesn't toll

MOTEN v. STUMP, COMM'R MOTOR VEHICLES, No. 33220 (Per
Curiam)(Albright, J., concurring)(June 6, 2007). Appellant
sought reversal of an order of the Circuit Court of Raleigh
County that affirmed suspension of his driving privileges.
Dismissing the appeal as improvidently granted, in light of the
fact that no timely appeal was filed from the final order.
Reiterating that there is no such thing as a "motion to
reconsider" and that a motion filed under Rule 60(b) does NOT
toll the running of the appeal period.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33220.htm


PROCEDURE, TORTS, EVIDENCE :: Divergent interests among
co-parties

KOMINAR v. HEALTH MANAGEMENT ASSOCIATES of WEST VIRGINIA, Inc.,
et al., No. 33215 (ALBRIGHT, J.)(Starcher, J., concurring)(June
7, 2007). Reversing a defense verdict in a medical malpractice
action tried before a six-member jury in the Circuit Court of
Mingo County. Holding that the trial court erred in granting
each of the three defendants three peremptory strikes, because
the parties did not prove that a serious, genuine hostility
existed among their positions, and further holding that such
error requires granting a new trial. Further addressing the
propriety of adverse inference instructions as a result of
spoliation of medical records. In syllabus point 9, outlining
factors to apply when trial courts consider limiting
cross-examination. Finally holding, in syllabus point 10, that:
"Trial courts should carefully examine whether an adversarial
relationship exists between co-parties at the time a motion to
limit cross-examination is raised in order to avoid the danger of
prejudice, confusion, or delay." Remanding for new trial.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33215.htm


PROFESSIONAL DISCIPLINE :: Suspension with pay denied

IN THE MATTER OF: CAROLYN D. CRUICKSHANKS, MAGISTRATE FOR BRAXTON
COUNTY, No. 33336 (BENJAMIN, J.)(Starcher, J., concurring in part
and dissenting in part)(Maynard, J., concurring)(Albright, J.,
concurring in part and dissenting in part)(June 6, 2007).
Upholding a magistrate's suspension without pay following a
finding of probable cause that the magistrate had engaged in a
serious violation of the Code of Judicial Conduct. Setting forth
factors to apply in similar cases, in syllabus point 3: "Always
mindful of the primary consideration of protecting the honor,
integrity, dignity, and efficiency of the judiciary and the
justice system, this Court, in determining whether to suspend a
judicial officer with or without pay, should consider various
factors, including, but not limited to, (1) whether the charges
of misconduct are directly related to the administration of
justice or the public's perception of the administration of
justice, (2) whether the circumstances underlying the charges of
misconduct are entirely personal in nature or whether they relate
to the judicial officer's public persona, (3) whether the charges
of misconduct involve violence or a callous disregard for our
system of justice, (4) whether the judicial officer has been
criminally indicted, and (5) any mitigating or compounding
factors which might exist."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33336.htm


PROFESSIONAL DISCIPLINE :: License suspended

LAWYER DISCIPLINARY BOARD v. MICHAEL F. NIGGEMYER, No. 33098 (Per
Curiam)(March 20, 2007). Agreeing with recommendations of
disciplinary counsel and holding the respondent in contempt for
failure to comply with prior orders. Immediately suspending
license to practice law and imposing other sanctions.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33098.htm


PROPERTY, ATTORNEY FEES :: Fees under W.Va. Code 36B-3-116(f)

UNITED BANK, INC., et al. v. STONE GATE HOMEOWNERS ASSOCIATION,
No. 33216 (DAVIS, C.J.)(May 10, 2007). Plaintiffs below appealed
an order of the Circuit Court of Putnam County denying their
requests for costs and attorney's fees under West Virginia Code
36B-3-116(f). Reversing, and holding in syllabus point 5 that:
"The plain language of W.ÊVa. Code ¤Ê36B-3-116(f) (1986) (Repl.
Vol. 2005) requires a judgment or decree in any action brought
under W.ÊVa. Code 36B-3-116 to include an award of costs and
reasonable attorney's fees for the prevailing party."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33216.htm


PROPERTY, CONTEMPT, PROCEDURE :: Roadway to subdivision

LYON CHAPMAN & SCOTT CHAPMAN, et al. v. SYLVIA CATRON, No. 33187
(Per Curiam)(May 11, 2007). Defendant below appealed an adverse
summary judgment and contempt ruling entered by the Circuit Court
of Hampshire County in a case involving a land dispute. Granting
mixed relief, and holding that the circuit court properly
determined that a roadway to a subdivision was a private
dedication. Reversing the circuit court's contempt finding in
light of the absence of evidence that the roadway had not been
restored to its original condition.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33187.htm


PROPERTY, NUISANCE, PUBLIC UTILITIES :: Siting certificate
doesn't preclude private nuisance

BURCH, et al. v. NEDPOWER MOUNT STORM LLC, et al., No. 33201
(MAYNARD, J.)(Benjamin, J., dissenting)(June 8, 2007). Reversing
an order of the Circuit Court of Grant County that dismissed an
action that sought to enjoin, under a nuisance theory, the
construction of a wind power generating facility. Holding, in
syllabus point 8, that: "The right of a person under the common
law to bring in circuit court a nuisance claim to enjoin the
construction and/or operation of an electric generating facility
that is designated under federal law as an exempt wholesale
generator is not precluded by the fact that the Public Service
Commission of West Virginia has granted a siting certificate to
the owner or operator of the facility pursuant to W.Va. Code
24-2-1(c)(1) (2006) and related statutes." Further holding, in
syllabus point 11 that: "While unsightliness alone rarely
justifies interference by a circuit court applying equitable
principles, an unsightly activity may be abated when it occurs in
a residential area and is accompanied by other nuisances."
Finally holding, in syllabus point 12: "An activity that
diminishes the value of nearby property and also creates
interferences to the use and enjoyment of the nearby property may
be abated by a circuit court applying equitable principles."
Remanding for further proceedings.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33201.htm


PROPERTY, PROCEDURE :: No contempt where service of hearing
notice was deficient

BILLY R. TRUMAN v. THOMAS C. AUXIER, No. 33159 (Per Curiam)(April
6, 2007). Auxier appealed an order of the Circuit Court of Clay
County finding him in contempt of a prior order, and asserted
that he was not timely served with the notice of hearing on
Truman's Motion for Contempt. Reversing the Circuit Court's
contempt finding, in light of the deficiencies regarding service
of the notice of hearing under Rule 6(d) of the Rules of Civil
Procedure.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33159.htm


PROPERTY, INSURANCE, CONTRACTS :: Life tenant policy loss

OPHA L. KEITH ESTATE, BY SHARON BUCKLAND, EXEX. v. DAVID W.
KEITH, No. 33131 (ALBRIGHT, J.)(April 19, 2007). Answering a
certified question arising from the Circuit Court of Monroe
County related to whether, upon the destruction of the real
property included in a life estate, a remainderman is entitled to
the proceeds from a fire insurance policy that the life tenant
applied for and purchased. Holding, in syllabus point 2, that:
"Where a life tenant insures the property subject to the life
estate in his own name and for his own benefit and pays the
premiums from his own funds, he is solely entitled to the
proceeds of the insurance upon a loss absent a provision in the
instrument creating the estate that requires the life tenant to
insure the estate for the benefit of the remainderman; an
agreement between the life estate tenant and the remainderman
that the estate will be insured for the benefit of the
remainderman; or the existence of a fiduciary relationship
between the remainderman and the life tenant."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33131.htm


TORTS :: Causation, limitation on expert testimony

GARY JENKINS v. CSX TRANSPORTATION, INC., No. 33179 (Per
Curiam)(Davis, C.J., concurring)(Starcher, J.,
dissenting)(Albright, J., dissenting)(May 17, 2007). Plaintiff
below appealed an order of the Circuit Court of Ohio County that
denied a motion for a new trial in a case under the Federal
Employer's Liability Act. Affirming, and holding that the trial
court did not abuse its discretion in limiting the testimony of
the plaintiff's expert in the field of neuropsychology such that
he could not give an opinion as to the cause of the plaintiff's
alleged brain injury.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33179.htm


TORTS :: Causation, expert testimony in medical malpractice,
disclosures

ESTATE OF FOUT-ISER v. HAHN, et al., No. 33189 (MAYNARD,
J.)(Davis, C.J., dissenting)(May 21, 2007). Reversing an order
of the Circuit Court of Mineral County that granted summary
judgment in favor of a defendant in a medical malpractice action,
after determining that plaintiffs failed to produce a medical
expert who would testify regarding the standard of care and
causation. Clarifying the requirements for such testimony in
syllabus points 5 and 6: "When a particular defendant's failure
to meet the standard of care is at issue in medical malpractice
cases, the sufficiency and nature of proof required is governed
by West Virginia Code 55-7B-7(a) (2003), which specifically
provides that: 'The applicable standard of care and a defendant's
failure to meet the standard of care, if at issue, shall be
established in medical professional liability cases by the
plaintiff by testimony of one or more knowledgeable, competent
expert witnesses if required by the court.' Once it is
established that a particular expert is to be used as a standard
of care witness, the trial court must determine the
qualifications of that expert witness pursuant to W.Va. Code
55-7B-3(a)(1) (2003), which provides that a plaintiff in a
medical malpractice action must show that: 'The health care
provider failed to exercise that degree of care, skill and
learning required or expected of a reasonable, prudent health
care provider in the profession or class to which the health care
provider belongs acting in the same or similar circumstances[.]'"
Concluding that the expert testimony provided was sufficient to
create a material issue of fact regarding the standard of care
and causation. Remanded for further proceedings.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33189.htm


TORTS, EVIDENCE :: Res ipsa loquitur

DAVID R. KYLE v. DANA TRANSPORT, INC., et al., No. 33183
(ALBRIGHT, J.)(Davis, C.J., concurring)(Starcher, J.,
concurring)(May 15, 2007). Plaintiff, an electrician who was
injured when an electrical panel exploded, appealed an order of
the Circuit Court of Putnam County that granted judgment in favor
of defendants and ruled that plaintiff was not entitled to
present his case under a res ipsa loquitur theory. Affirming the
circuit court's order, and holding, in syllabus point 4, that: "A
plaintiff seeking to apply the doctrine of res ipsa loquitur is
required to demonstrate that the evidence he or she intends to
present is circumstantial evidence that will lead to reasonable
inferences by the jury, and is not simply evidence which would
force the jury to speculate in order to reach its conclusion."
Further clarifying the evidentiary standards in syllabus point 6:
"In order to avoid summary judgment or judgment as a matter of
law, a plaintiff who seeks to proceed on a theory of res ipsa
loquitur must demonstrate each of the three prongs of the test
this Court adopted in syllabus point four of FOSTER v. CITY OF
KEYSER, 202 W.Va. 1, 501 S.E.2d 165 (1997), as a predicate to
application of the evidentiary rule of res ipsa loquitur."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33183.htm


TORTS, EVIDENCE :: Judicial notice of somatoform disorder
disability decision

ERIC JASON BROOKS v. GALEN OF WEST VIRGINIA, INC., DBA GREENBRIER
VALLEY MED CTR., No. 33207 (Per Curiam)(April 19, 2007). Brooks
appealed denial of post -trial motions following an adverse jury
verdict obtained in the Circuit Court of Greenbrier County in a
case alleging medical negligence. Affirming, and holding that the
circuit court did not err in taking judicial notice of a Social
Security Disability award for somatoform disorder Ð a different
disorder than alleged at trial Ð where the plaintiff acquiesced
to introduction of the evidence. Further holding that the
circuit court properly excluded certain testimony relating to
deviations from the emergency room standard of care.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33207.htm


TORTS, INSURANCE, DISCOVERY :: Disclosure of case reserves
information

STATE ex rel. ERIE INSURANCE PROPERTY & CASUALTY CO. v. MAZZONE
et al., No. 33209 (ALBRIGHT, J.)(Starcher, J.
concurring)(Benjamin, J., concurring)(June 7, 2007). Denying a
writ of prohibition sought by insurer in a third-party bad faith
action to prevent enforcement of an order requiring disclosure of
relevant reserves information to the plaintiff below. [See prior
case involving similar order: SER ERIE INS. PROP. & CAS. Co. v.
MAZZONE, 218 W.Va. 593, 625 S.E.2d 355 (2005)("ERIE I").] In
syllabus points 4, 5 and 6, setting forth guidance for
determining whether case reserves information is privileged from
disclosure:

4. When individual case reserves information is set by an
attorney or by a non- lawyer representative with the primary
intent of preparing for litigation, then the individual case
reserves information is subject to protection from discovery as
opinion work product pursuant to Rule 26(b)(3) of the West
Virginia Rules of Civil Procedure.

5. For the purposes of Rule 26(b)(3) of the West Virginia Rules
of Civil Procedure, aggregate reserves documents compiled for
specific litigation either by a lawyer or by a non-lawyer
representative are opinion work product and merit greater
protection from discovery. However, aggregate reserves documents
not developed primarily in anticipation of specific litigation
but produced for general business purposes are not protected by
the work product rule.

6. Reserves documents determined to be opinion work product are
generally protected from disclosure under the provisions of Rule
26(b)(3) of the West Virginia Rules of Civil Procedure unless the
party seeking discovery demonstrates compelling need for the
materials, which shall include proof that the opinion materials
qualify for a recognized exclusion from application of the work
product doctrine.

With regard to the disclosures at issue, holding that there was
no basis in the limited record to conclude that the reserves were
set for reasons other than the ordinary course of business, and
that Erie did not prove that the principal reason for setting the
reserves was anticipation of litigation.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33209.htm


TORTS, PROCEDURE :: Tolling statute of limitations due to
insanity

MICHAEL WORLEY, et al. v. BECKLEY MECHANICAL, INC., et al., No.
33190 (MAYNARD, J.)(Davis, C.J., dissenting)(Starcher, J.,
concurring)(Benjamin, J., dissenting)(May 17, 2007). Plaintiffs
appealed following a bench trial in the Circuit Court of Raleigh
County on the issue of whether plaintiff was under a disability
that either suspended or tolled the running of the statute of
limitations in this personal injury action. Examining legislative
intent in construing W.Va. Code 55-2-15, and finding that a
literal application of the statute's language potentially
excludes from protection many persons the statute was intended to
protect. Reversing, and setting forth evidentiary guidelines in
syllabus point 4: " In order for mental illness to toll the
commencement of the running of the statute of limitations
pursuant to W.Va. Code 55-2-15 (1923), the plaintiff must show
that the interval between the tortious act and the resulting
mental illness was so brief that the plaintiff, acting with
diligence, could not reasonably have taken steps to enforce his
or her legal rights during such interval."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33190.htm


TORTS, PRODUCTS LIABILITY :: Learned intermediary exception
rejected

STATE ex rel. JOHNSON & JOHNSON CORP., etc. v. KARL, et al., No.
33211 (DAVIS, C.J.)(Starcher, J., concurring)(Maynard, J.,
concurring)(Albright, J., dissenting)(Benjamin, J.,
dissenting)(June 27, 2007). Denying a writ of prohibition sought
by pharmaceutical company to prevent enforcement of an order of
the Circuit Court of Marshall County. Holding, in syllabus point
3, that: "Under West Virginia products liability law,
manufacturers of prescription drugs are subject to the same duty
to warn consumers about the risks of their products as other
manufacturers. We decline to adopt the learned intermediary
exception to this general rule."

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33211.htm


TORTS, STATUTORY CONSTRUCTION :: Pharmacies not included in MPLA

PHILLIPS v. LARRY'S DRIVE-IN PHARMACY, INC., No. 33194 (STARCHER,
J.)(Maynard, J., concurring)(June 28, 2007). Answering certified
question from the Circuit Court of Boone County in a case where a
plaintiff alleges that a pharmacy negligently filled a
prescription. In construing the provisions of the 1986 Medical
Professional Liability Act, holding, in syllabus point 5, that:
"Where there is any doubt about the meaning or intent of a
statute in derogation of the common law, the statute is to be
interpreted in the manner that makes the least rather than the
most change in the common law." Although affidavits were
submitted from several legislators who participated in the
conference committee involving the legislation at issue, holding
that the circuit court did not abuse its discretion in refusing
to consider the affidavits in assessing legislative intent;
although information in the affidavits is persuasive, "the
information is not corroborated by the legislative history
because the Legislature failed to preserve any record of the
committee meetings to which the affidavits refer. Furthermore,
the affidavits go beyond reciting the history behind the MPLA's
enactment and instead detail each legislator's opinion about the
proper interpretation of the statute." Finally holding, in
syllabus point 7, that: "A pharmacy is not a 'health care
provider' as defined by the Legislature in W.Va. Code, 55-7B-2(c)
[1986]" and is therefore not entitled to the protections set
forth therein.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33194.htm


WILLS & ESTATES, PROCEDURE :: Testator's personal representative
not removed, scope of appellate review

HAINES v. KIMBLE, No. 32844 (Per Curiam)(Davis, C.J.,
dissenting)(Starcher, J., concurring)(Maynard, J.,
dissenting)(June 28, 2007). Upon rehearing, affirming an order of
the Circuit Court of Hampshire County that affirmed an order of
the County Commission of Hampshire County that denied a petition
by the appellant to remove a designated executrix. Holding that
the circuit court properly limited its review to the record made
before the county commission, which did not include many of the
claims of mal-administration currently asserted. Of the claims
properly asserted and made part of the record, neither were
sufficient to compel removal of the executrix. Further holding
that the appellant failed to prove hostility sufficient to remove
the executrix. In view of the deference to be accorded a
testator's selection of a fiduciary, any hostility, without more,
is an insufficient basis for removal of the designated executrix.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/32844.htm


WORKERS' COMPENSATION, PROCEDURE :: No entitlement to original
jurisdiction relief to pay damages for mental-mental injury

STATE ex rel. DONALD DARLING v. DARRELL V. McGRAW, JR., ATTORNEY
GENERAL, et al., No. 33210 (Per Curiam)(Davis, C.J.,
concurring)(Starcher, J., concurring in part and dissenting in
part)(Albright, J., concurring in part and dissenting in
part)(June 28, 2007). Denying a writ of mandamus sought to
compel payment of damages for chronic depression and migraines
alleged to have arisen in the course of and resulting from his
employment by the Attorney General. In the absence of a physical
impact, workers' compensation benefits were denied, and the
petitioner sought relief for the so-called "mental-mental" injury
under the stop-gap provision of the state's comprehensive
liability policy. Holding that the petitioner is not entitled to
relief in mandamus, in light of the fact that he did not
demonstrate a clear right to the relief he seeks and cannot
demonstrate a legal duty on the part of his employer to act as
requested.

To view the majority opinion in this case, go to:
http://www.state.wv.us/wvsca/docs/spring07/33210.htm


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