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Office of the Clerk
Case Topics: Civil
Information about WV Supreme Court cases in the area of civil law
?Wednesday, July 16, 2008
Jnauary term opinions summarized
Posted today were summaries of each of the 66 opinions issued in the January 2008 term of court, comprising 26 signed opinions and 40 per curiam opinions.
CASES HELD OVER: Four cases submitted for decision in the January 2008 term of court were held over, with an opinion to issue during the September term. Those cases are: (1) SAVARESE v. ALLSTATE INS. CO., No. 33443(Argued January 23, 2008); (2) RASHID v. TARAKJI, No. 33596 (Argued April 1, 2008); (3) STATE EX REL. HATFIELD v. PAINTER, No. 33668 (Argued April 16, 2008); (4) LAWYER DISC. BD. v. WILLIAM H. DUTY, No. 33069, (Original opinion withdrawn when the Court granted a petition for rehearing. The case was re-argued on May 25, 2008. Thereafter, Chief Justice Maynard recused himself from the case, and the case will be set for a second re-argument in the September term.)
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ABUSE & NEGLECT :: GAL request to amend petition
IN RE: SUMMER D., No. 33386 (Per Curiam)(February 26, 2008). Reversing an order of the Circuit Court of Brooke County that denied a motion by the guardian ad litem to amend an abuse & neglect petition. Holding that the circuit court erred in denying the motion to amend, because reasonable cause to believe additional abuse and neglect is imminent, but not encompassed by the allegations of the petition. Holding that the record is insufficient to determine the ability of the father to parent the child. Remanding for further proceedings.
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ABUSE & NEGLECT, GUARDIANSHIP :: Infant guardianship, overlap
IN RE: ABBIGAIL FAY B., No. 33716 (DAVIS, J.)(May 23, 2008). Affirming an order of the Circuit Court of Cabell County that denied an infant guardianship petition sought by the maternal grandparents, and returned the child's custody to her biological parents. Concluding that the circuit court properly determined that the appellants did not carry their burden of proving that the child was abused or neglected and failed to show that the biological mother was not a fit parent. Clarifying the circumstances in which a guardian may be appointed, and addressing aspects of Family Court Rule 48a, wherein allegations of abuse and neglect arise in family court and are subsequently transferred to circuit court for disposition.
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COMPROMISE & SETTLEMENT :: Mediated settlement enforced
MESSER v. HUNTINGTON ANESTHESIA GROUP, INC., et al., No. 33663 (Per Curiam)(June 26, 2008). Vacating an order of the Circuit Court of Cabell County that granted summary judgment to defendants, following remand in MESSER I, See 218 W.Va. 4, 620 S.E.2d 144 (2005). Limiting discussion to the sole issue of whether a valid settlement agreement was reached following court-annexed mediation. Given the circumstances of the case, the record as a whole demonstrates that the mediated settlement was the result of a meeting of the minds, that counsel for the defendants had apparent authority to act on their behalf, with no showing by the defendants otherwise, and that counsel's reliance on one spokesperson for the defendants was reasonable under the circumstances. Accordingly, the mediated settlement should have been enforced, and the plaintiff is entitled to a reasonable award of attorney fees, to be determined upon remand.
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CONTEMPT, PROPERTY, PROCEDURE :: Legal inability
WATSON v. SUNSET ADDITION PROPERTY OWNERS ASSOCIATION, INC., et al., No. 33338 (STARCHER, J.)(MAYNARD, C.J., disqualified)(Judge James Matish, by temporary assignment)(March 19, 2008). Reversing an order of the Circuit Court of Logan County that held a property owner's association in contempt for failing to install a sewage treatment plant for which they were unable to obtain a permit. Holding that ordinarily a party may not be held in contempt for failure to perform an act that the party is unable to legally perform, if the evidence establishes that the party's inability to legally perform the act is not the party's fault. Remanding for further proceedings, and directing that a separate administrative appeal related to the denial of the permit be transferred and consolidated with the action giving rise to the contempt order.
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CONTRACTS, PROCEDURE :: Individual cause of action, promissory estoppel
HOOVER v. MORAN, No. 33460 (Per Curiam)(March 14, 2008). Granting mixed relief from an order of the Circuit Court of Kanawha County that dismissed an action that sought recovery on an unwritten promise to pay a percentage of profits from the sale of a coal company. Holding that the complaint adequately set forth a cause of action against the defendant in his individual capacity. Further holding that even assuming the statute of frauds applies to this type of arrangement, the doctrine of promissory estoppel precludes dismissal, under the facts set out in the complaint. Rejecting the defendant's cross-assignment of error, and holding that the circuit court properly reinstated the action under Rule 41(b), where neither the plaintiff nor plaintiff's counsel received notice of the dismissal.
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CONTRACTS, TORTS, PROCEDURE :: Construing a forum selection clause, res judicata
CAPERTON, et al. v. A.T. MASSEY COAL CO., et al., No. 33350 (DAVIS, J.)(Maynard, C.J., disqualified)(Starcher, J., disqualified)(Judge Donald Cookman and Judge Fred Fox sitting by temporary assignment)(Albright, J., and Judge Cookman dissenting)(Benjamin, A.C.J., and Judge Fox concurring)(April 3, 2008). In an opinion issued upon rehearing, reversing an order of the Circuit Court of Boone County that denied defendants' post-trial motions in response to the entry of judgment of more than $50 million in favor of the plaintiffs below. Resolving the appeal on two separate and mutually exclusive grounds. First, 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. Second, holding that res judicata is an independent basis for reversal, due to an earlier action litigated in Virginia, which defense may be raised on appeal when the prior action relied upon becomes final during the pendency of the appeal.
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CRIMINAL, CONSTITUTIONAL :: Improper burden-shifting on ability to pay child support
STATE v. DAVID GABRIEL STAMM, No. 33505 (DAVIS, J.)(May 23, 2008). Reversing a conviction arising from the Circuit Court of Harrison County, for the felony offense of failure to meet an obligation to provide support to a minor under W. Va. Code 61-5-29. Holding, in syllabus point 5 that: "Insofar as W.Va. Code 61-5-29(3)(1999)(Repl. Vol. 2005) shifts to a defendant the burden of disproving a material element of the State's case, in violation of the due process clauses found in Article II, Section 10, of the Constitution of West Virginia, and the Fourteenth Amendment to the United States Constitution, that individual provision, severed from the remainder of W. Va. Code 61-5-29, is unconstitutional and unenforceable. W. Va. Code Sections 61-5-29(1) and (2) remain fully enforceable." Under the circumstances of the case, further holding that a jury instructions did not render harmless the constitutional error of the burden-shifting statute, because the jury instructions could have misled the jury into believing that the defendant bore the burden of proof as to his ability to pay support. Remanded for a new trial.
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DISCOVERY, EVIDENCE, INSURANCE, PROCEDURE :: Procedure for discovery of allegedly privileged material
STATE EX REL. NATIONWIDE MUTUAL INS. CO., et al. v. KAUFMAN, et al., No. 33652 (DAVIS, J.)(JANUARY 25, 2008). Denying a writ of prohibition sought to prevent enforcement of an order of the Circuit Court of Kanawha County that required production of certain discovery materials for in camera inspection along with a privilege log, and denied a motion for protective order and stay of discovery sought by the insurance company. Expanding the WESTFIELD privilege log requirement to all cases where privilege is asserted. Applying the LIGHT multi-factor test to the general question of staying discovery against an insurer where an insured is a co-defendant. Holding that the circuit court correctly determined both issues, and declining to address a bifurcation issue raised because the circuit court had not yet ruled on the issue.
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EMPLOYMENT, LOCAL GOVERNMENT :: Civil service commission for deputy sheriffs
MESSER v. HANNAH, No. 33655 (BENJAMIN, J.)(Starcher, J., and Albright, J., dissenting)(June 26, 2008). Reversing an order of the Circuit Court of Mingo County that affirmed a decision by the Mingo County Civil Service Commission for Deputy Sheriffs that reinstated the appellee to his former rank with full back pay and no charges placed on his record, after the Sheriff had imposed indefinite suspension for submitting false travel vouchers. Holding that an appellate court can reverse a Civil Service Commission for Deputy Sheriffs where, as here, the commission's decision fails to consider an important aspect of the problem. Because the commission failed to consider the evidence of record offered by the prosecuting attorney to the effect that the appellee's integrity and credibility as a law enforcement officer had been irreparably compromised, the Sheriff's order imposing an indefinite suspension should be reinstated.
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EMPLOYMENT, LOCAL GOVERNMENT :: Prevailing wage for work not let to contract
STATE EX REL. TUCKER COUNTY SOLID WASTE AUTHORITY v. WEST VIRGINIA DIVISION OF LABOR, et al., No. 33809 (DAVIS, J.)(Starcher, J., and Albright, J., dissenting)(June 26, 2008). Granting a writ of prohibition to prevent the Department of Labor from continuing administrative proceedings against the a county solid waste authority for failing to pay the prevailing wage to certain temporary workers. Examining whether the Prevailing Wage Act applies to employees of a public authority who are performing work that was never let to contract. Holding in syllabus point 8, that: "Pursuant to W. Va. Code 21-5A-1(7) (1961) (Repl. Vol. 2002), the terms 'employee' and 'workman,' as used in the West Virginia Prevailing Wage Act, W. Va. Code 21-5A-1, et seq., do not include workers who are (1) employed or hired by a public authority on a regular basis, (2) employed or hired by a public authority on a temporary basis, (3) employed or hired by a public authority to perform temporary repairs, or (4) employed or hired by a public authority to perform emergency repairs." Further concluding, in syllabus point 9: "W. Va. Code 21-5A-2 (1961)(Repl. Vol. 2002) requires the prevailing wage to be paid to all workmen who are employed 'on behalf of any public authority' and who are 'engaged in the construction of public improvements.' To the extent that our prior holding in Syllabus point 3 of AFFILIATED CONSTRUCTION TRADES FOUNDATION v. UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES, 210 W. Va. 456, 557 S.E.2d 863 (2001), is inconsistent with this holding, it is expressly modified."
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EMPLOYMENT, UNEMPLOYMENT COMPENSATION :: Substantial unilateral changes
MAY v. BOARD OF REVIEW, WEST VIRGINIA BUREAU OF EMPLOYMENT PROGRAMS, et al., No. 33703 (Per Curiam)(Maynard, C.J., disqualified)(June 17, 2008). Reversing an order of the Circuit Court of Kanawha County that affirmed an administrative decision denying unemployment compensation. Holding that substantial unilateral changes in the terms of the appellant's employment, instigated by her employer, necessitated her resignation, and that she was therefore not disqualified from receiving benefits. Holding that because the Board of Review ignored the factual evidence regarding the substantial unilateral changes in the appellant's employment and failed to analyze whether the changes were substantial and whether they amount to good cause, the Board of Review's findings and legal conclusions were erroneous.
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EMPLOYMENT, UNEMPLOYMENT COMPENSATION :: Early retirement packages and unemployment compensation
CHILDRESS, et al. v. MUZZLE, et al., No. 33440 (STARCHER, J.)(March 19, 2008). Reversing an order of the Circuit Court of Kanawha County that had in turn reversed a decision by the Board of Review of the Bureau of Employment Programs. The BOR decision denied unemployment compensation to two employees who had accepted early retirement packages. Reviewing the relevant statutory scheme and addressing the "good cause" standard, and further holding that employees who accept an early retirement incentive package are disqualified from receiving unemployment compensation unless the employee can establish a well-grounded fear of imminent layoff and that the employee would suffer a substantial loss by not accepting the early retirement incentive package. Reinstating the BOR decision under the circumstances of the case, where neither employees' jobs were threatened if they did not accept the incentive package.
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FAMILY, PROCEDURE :: Home state under U.C.C.J.E.A.
ROSEN v. ROSEN, No. 33437 (BENJAMIN, J.)(June 26, 2008). Affirming an order of the Circuit Court of Monongalia County that affirmed a family court ruling that retained jurisdiction over child custody matters. Construing application of the Uniform Child Custody Jurisdiction and Enforcement Act, and setting forth guidance for the term "home state" as used therein. Holding that the family court properly concluded that West Virginia is the home state, and because Ohio did not have jurisdiction, the family court did not violate the full and faith and credit clause by ignoring the Ohio court's order.
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FAMILY, CONTEMPT, PROCEDURE :: Contempt sanctions properly imposed by family court
DEITZ v. DEITZ, No. 33446 (Per Curiam)(February 14, 2008). Granting mixed relief from an order of the Circuit Court of Gilmer County that affirmed a family court's determination that Mr. Deitz was in contempt, but reversed the contempt sanctions and remanded with instructions. Holding that the circuit court lacked jurisdiction to issue a sua sponte stay of the family court's order. Holding that the circuit court properly exercised jurisdiction over the timely appeal, but improperly modified the conditions attached to the contempt order; in light of the facts of the case, the short time periods to purge the contempt were not unreasonable. Further holding that the circuit court erred in determining that the family court failed to consider Mr. Deitz's ability to pay, in light of the evidence in the record, and further in light of Mr. Deitz's lack of proof on that issue. Finally holding that the circuit court erred in reversing the family court's sanction of imprisonment. Remanding with specific directions.
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FAMILY, PROCEDURE :: Certificate of service on petition is mandatory
GUIDO v. GUIDO, No. 33599 (Per Curiam)(Albright, J., and Starcher, J., dissenting)(June 18, 2008). Affirming an order of the Circuit Court of Marion County that denied a petition for appeal from a decretal judgment for child support arrearages in the total amount of $22,767.17, on the basis that the petition was not properly completed. Holding that the requirement of service in W.Va. Code 51-2A-11(b) is mandatory, and that lack of a certificate of service upon the obligee and the Bureau for Child Support Enforcement is violation of a mandatory requirement, not a mere technical violation of procedural rules.
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FAMILY, PROCEDURE :: Appeal period is not jurisdictional
CREA v. CREA, No. 33656 (MAYNARD, C.J.)(June 18, 2008). Affirming an order of the Circuit Court of Jefferson County that denied a petition for appeal from a family court final order. Holding that the family court properly allocated marital debt between the parties, properly denied a credit for reduction in mortgage principle, and properly awarded alimony. Clarifying the Court's prior holding in WASHINGTON v. WASHINGTON, 221 W.Va. 224, 654 S.E.2d 110 (2007), and holding that the thirty-day appeal deadline set forth in Family Court Rule 28(a) is not jurisdictional, and may be extended for good cause. The petition under consideration was not timely filed, an no motion seeking an extension was presented. Accordingly, the circuit court's decision is correct.
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FAMILY, PROPERTY :: Transfer of real estate prior to final divorce order
WHITESIDE v. WHITESIDE, et al., No. 33514 (MAYNARD, C.J.)(Benjamin, J., disqualified)(Judge Alsop, by temporary assignment)(May 28, 2008). Reversing an order of the Circuit Court of Kanawha County that denied an appeal from family court in which the appellant sought to void a deed conveying her ex-husband's share of certain marital property to the intervenor below, Equity Holdings, LLC. Setting forth criteria for evaluating whether a transfer of property prior to the effective date of a final order of equitable distribution is valid. Because Equity Holdings had actual notice of the divorce proceedings and also knew of the appellant's intention to make claims against her ex-husband's share of the property, Equity Holdings is not a bona fide purchaser. Further holding that Mr. Whiteside's actions clearly establish an intent to avoid application of the equitable distribution statutes. Remanding for entry of an order voiding the deed, and for determination of a reasonable amount of attorney fees, pursuant to West Virginia Code 48-5-611(c), from either Mr. Whiteside or Equity Holdings, or from both jointly and severally.
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HABEAS CORPUS, PROCEDURE :: Denial of relief without evidentiary hearing
STATE EX REL. JAMES BLAINE WALDRON v. SCOTT, No. 33434 (Per Curiam)(March 18, 2008). Affirming an order of the Circuit Court of McDowell County that denied habeas corpus relief without conducting an evidentiary hearing. Holding that although the order failed to make specific findings as to why an evidentiary hearing was not required, such omission was harmless in light of the fact that each issue raised was exhaustively addressed in the circuit court's order; and further in light of the fact that several of the issues were previously and finally adjudicated in the petitioner's direct appeal. The circuit court addressed the petitioner's claim of ineffective assistance of counsel in a very detailed fashion, and correctly held that the prejudice prong of the Strickland standard could not be satisfied.
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INSURANCE, EVIDENCE, COMPROMISE & SETTLEMENT, ATTORNEY FEES :: Consent judgments and subsequent bad faith actions
HORKULIC, etc. v. GALLOWAY, et al. and TIG INSURANCE CO., Appellant --AND-- STATE EX REL. TIG INSURANCE CO. v. RECHT, et al., Nos. 33352 and 33353 (ALBRIGHT, J.)(MAYNARD, C.J., concurring)(DAVIS, J., concurring)(BENJAMIN, J., concurring)(February 19, 2008). Affirming an order of the Circuit Court of Hancock County that enforced a settlement agreement, and holding that the consent judgment contained in the settlement agreement would not be binding upon the insurer in subsequent bifurcated bad faith proceedings. Further holding that under the unique facts of the case, where the insurer was prohibited from participating in the plenary hearing on the settlement issues, and where the record was "littered with examples of uncertainty" about certain aspects of the settlement, that it was inequitable for the circuit court to award attorney fees. Granting a moulded writ, ad remanding with directions to conduct an evidentiary hearing as to the extent of the insurer's culpability in delaying enforcement of the settlement.
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INSURANCE, EVIDENCE, JURIES :: Using the name of a captive law firm in voir dire
STATE EX REL. NATIONWIDE MUTUAL INS. CO. v. KARL, et al., No. 33651 (BENJAMIN, J.)(Maynard, C.J., dissenting)(Feb. 14, 2008). Denying a writ of prohibition sought by insurer to prevent enforcement of an order of the Circuit Court of Marshall County. Holding that the name of an insurance company's captive law firm may be identified during voir dire in the same manner as the captive firm otherwise identifies its affiliation with the insurer. Holding that the petitioner placed improper reliance upon a formal ethics opinion, L.E.I 99-01. Holding that separate and distinct voir dire questions should be used, so that the court may inquire of a juror's affiliation with the captive firm without associating the captive firm with defense counsel's office.
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LOCAL GOVERNMENT :: Refusal to sign pay orders authorized by county commission
263 TOWING, INC. v. MARCUM TRUCKING CO., INC.; LONNIE HANNAH, SHERIFF OF MINGO COUNTY, Appellant, No. 33382 (ALBRIGHT, J.)(March 14, 2008). Reversing orders of the Circuit Court of Mingo County that declined to vacate an earlier ruling granting mandamus relief to compel the sheriff to sign pay orders authorized by the county commission, and further awarded attorney fees and prejudgment interest. Holding that under the Prompt Pay Act, a sheriff's duty to sign pay orders is nondiscretionary only if based upon invoices that reflect legitimate and uncontested costs. Giving effect to the language of the statute, and holding that in the rare case when a sheriff has good cause to doubt the legitimacy of an invoice, supported by demonstrable evidence, the sheriff may refuse to sign the pay order. Further setting forth procedures for requesting a hearing before the county commission in such circumstances. Remanding for further proceedings, including reconsideration of pre-judgment interest and attorney fees, and directing a special prosecutor be appointed to represent the sheriff.
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MOTOR VEHICLES, CRIMINAL :: Delay in receipt of officer's statement
CARPENTER v. CICCHIRILLO, COMMISSIONER, No. 33654 (Per Curiam)(February 28, 2008). Reversing an order of the Circuit Court of Kanawha County that reversed an administrative decision to revoke a driver's license for driving under the influence. Holding that a minor delay in receipt of the Statement of Arresting Officer did not deprive the DMV of its duty to investigate and consider license revocation once it received the paperwork. In light of the fact that the driver was not subject to actual prejudice because of the delay, the circuit court erred in reversing the DMV's revocation decision.??[Permanent Link] ?Google It!?
OIL & GAS, EQUITY :: Implied duty to develop, partial recission
ST. LUKE'S UNITED METHODIST CHURCH, et al. v. CNG DEVELOPMENT CO., et al., No. 33527 (ALBRIGHT, J.)(June 12, 2008). Reversing an order of the Circuit Court of Ritchie County that dismissed portions of a complaint relating to partial recission in connection with an oil and gas lease dispute. Holding, in syllabus point 4, that: "A trial court may consider the equitable remedy of partial rescission in fashioning the relief to be awarded upon proof sufficient to establish a breach of the implied covenant of development in connection with an oil and gas lease dispute." Concluding that the trial court should impose a reasonable time period during which additional development efforts may be undertaken, and if additional drilling efforts have not been commenced, the trial court should take evidence to determine whether the appellant can prove either a breach of the implied duty of development or that she has suffered extreme hardship due to the alleged underdevelopment of the leased property. If either is proven, then the equitable remedy of partial recission may be utilized.
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OIL & GAS, PROCEDURE :: Prohibition inappropriate to resolve jurisdictional disputes over well regulation
STATE EX REL. BLUE EAGLE LAND, LLC, et al. v. WEST VIRGINIA OIL & GAS CONSERVATION COMM'N, et al., No. 33705 (Per Curiam)(Benjamin, J., disqualified)(Judge John W. Hatcher, Jr., by temporary assignment)(May 27, 2008). Addressing a dispute over whether certain oil and gas wells were deep wells, and therefore regulated by the Oil & Gas Conservation Commission, or were shallow wells, regulated by the Shallow Well Gas Review Board. In light of the absence of a factual record, and the fact-dependant nature of the jurisdictional inquiry, holding that an appeal in circuit court is a more appropriate forum, and dismissing with leave to file an appeal within thirty days of issuance of the mandate, which shall be deemed to be a timely appeal.
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PROCEDURE :: Amendment to John Doe complaint relates back
MUTO v. SCOTT, et al., No. 33506 (MAYNARD, C.J.)(June 26, 2008). Reversing an order of the Circuit Court of Grant County that dismissed a personal injury action, after determining that the plaintiff's amended complaint did not relate back to the original complaint, and was therefore barred by the statute of limitations. Holding, in syllabus point 6, that "Under Rule 15(c)(3)(B) of the West Virginia Rules of Civil Procedure, a 'mistake concerning the identity of the proper party' may include the circumstance where the complaint names a 'John Doe' defendant due to the plaintiff's lack of knowledge of the proper defendant where the filing of the 'John Doe' complaint is not part of a deliberate strategy to achieve an advantage and the plaintiff's lack of knowledge is not due to the plaintiff's dilatory conduct in identifying the proper defendant prior to the expiration of the applicable statute of limitations." Under the circumstances of the case, the amended complaint should relate back.
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PROCEDURE, ATTORNEY FEES :: Offers of judgment and statutory attorney fees under the Human Rights Act
CROFT, et al. v. TBR INC., et al., No. 33504 (Per Curiam)(Starcher, J., concurring)(Benjamin, J., dissenting)(March 18, 2008). Reversing an order of the Circuit Court of Ohio County that denied the plaintiff's motion for attorney fees and costs, where the defendants accepted Rule 68 offers of judgment to resolve sexual harassment-related claims brought under the Human Rights Act. Holding that under syllabus point 4 of SHAFER v. KINGS TIRE SERVICE, Inc., 215 W. Va. 169, 597 S.E.2d 302 (2004), Rule 68 offers of judgment do not act as a waiver of the right to seek statutory attorney fees unless the offer explicitly states that it is inclusive of attorney fees. Because the offers in the case were not explicit in that point, reversing and remanding for further proceedings to determine a reasonable amount of attorney fees and costs.
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PROCEDURE, OIL & GAS :: Default judgment improper
GROVES v. HILDRETH, et al., No. 33528 (Per Curiam)(June 3, 2008). Reversing an order of the Circuit Court of Roane County that granted default judgment in a mineral rights dispute in the amount of $704,000. Holding that the circuit court abused its discretion in refusing the motion to vacate the default judgment, especially in light of the fact that the plaintiffs' claim to the minerals at issue was not supported by evidence in the record or by any theory of law, and therefore the default judgment should have been set aside under Rule 60(b)(6) of the Rules of Civil Procedure.
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PROPERTY, MUNICIPALITIES :: Declaration of public roads
FORD, et al. v. DICKERSON, et al., No. 33449 (Per Curiam)(February 27, 2008). Affirming an order of the Circuit Court of Boone County that granted summary judgment to defendants in an action sought to enjoin obstruction of streets in an unincorporated town. Holding that the circuit properly determined that the streets were not public roads, in light of the fact that, under the third method outlined in RYAN v. MONONGALIA COUNTY COURT, 86 W.Va. 40, 102 S.E.2d 731 (1920), the plaintiffs had failed to established acceptance of the dedication by the proper authorities.
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TAXATION, CORPORATIONS :: Personal liability for unpaid sales tax
SCHMEL V. HELTON, No. 33379 (STARCHER, J.)(Albright, J., concurring in part and dissenting in part)(February 27, 2008). Affirming an order of the Circuit Court of Jefferson County that upheld an administrative ruling in favor of the tax commissioner, wherein a corporate officer and bookkeeper for a bar and restaurant business can be held liable for consumer sales taxes that were collected by the business, but not remitted to the State as required by law. Setting forth due process standards for imposition of personal liability in syllabus point 4, and requiring the person seeking to avoid liability to show by clear and convincing evidence, giving due deference to the statutory authorization for imposing liability, that it would be fundamentally unfair and an arbitrary and capricious or unreasonable act to impose such liability. Holding that the commissioner properly imposed liability under the circumstances, and further rejecting a statute of limitations argument.
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TORTS, CONTRACTS, PROCEDURE :: Statute of repose for suits against architects and builders
NEAL v. MARION, et al., No. 33520 (BENJAMIN, J.)(June 18, 2008). Reversing an order of the Circuit Court of Kanawha County that granted summary judgment to defendants in a suit by homeowners alleging concealment of construction defects and fraudulent misrepresentations regarding the defects. Holding that dismissal of the claims against the builder under the statute of repose was improper, and clarifying application of the statute of repose in syllabus point 6: "West Virginia Code 55-2-6a (1983) sets an arbitrary time period after which no actions, whether contract or tort, seeking damages for any deficiency in the planning, design, surveying, observation or supervision of any construction or the actual construction of any improvement to real property may be initiated against architects and builders. This arbitrary time limit begins to run when the builder or architect relinquishes access and control over the construction or improvement *and* the construction or improvement is (1) occupied or (2) accepted by the owner of the real property, whichever occurs first. Pre-existing statutes of limitation for both contract and tort actions continue to operate within this outside limit. To the extent this Court's decisions in SHIRKEY v. MACKEY, 184 W. Va. 187, 399 S.E.2d 868 (1990), and GIBSON v. WEST VIRGINIA DEPARTMENT OF HIGHWAYS, 185 W. Va. 214, 406 S.E.2d 440 (1991), indicate otherwise, they are hereby modified." Further holding that the circuit court erred in applying the statute of repose to the claims involving fraud, misrepresentation and civil conspiracy.
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TORTS, EVIDENCE :: Informed consent issue properly went to the jury
STANLEY v. CHEVATHANARAT, No. 33666 (Per Curiam)(April 24, 2008). Affirming an order of the Circuit Court of Logan County that denied a Rule 50(a) motion for judgment on the sole issue of whether the defendant breached the standard of care by failing to obtain informed consent by not offering the alternative of hormone replacement therapy prior to performing a hysterectomy. Holding that the testimony of record was conflicting on the point and that the circuit court properly denied the motion. The jury found in favor of the defendant on all issues.
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TORTS, PROCEDURE :: New trial improperly awarded
NEELY v. BELK INCORPORATED, et al., No. 33597 (BENJAMIN, J.)(Starcher, J., and Albright, J., dissenting)(June 26, 2008). Reversing an order of the Circuit Court of Raleigh County that set aside a jury verdict in favor of the defendants and awarded a new trial after finding that the jury verdict was against the clear weight of the evidence. Holding that the circuit court abused its discretion, and that a review of the record indicates disputed facts regarding the elements of forseeability and damages, which were properly submitted to the jury and resolved in favor of the defendants. Because there was no prejudicial error in the admission of evidence or instructions provided, the circuit court erred by substituting its judgment of the credibility of the evidence for that of the jury's.
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TORTS, PROCEDURE :: Suit was time-barred
LEGG v. RASHID, No. 33521 (Per Curiam)(Davis, J., and Benjamin, J., disqualified)(Judge Charles King and Judge Gary Johnson by temporary assignment)(Albright, J., dissenting)(May 28, 2008). Affirming an order of the Circuit Court of Kanawha County that granted summary judgment to defendant on the basis that the medical malpractice complaint was filed beyond the statute of limitations period. Holding that because the treatment plaintiff received was such a failure, the plaintiff should have recognized that his condition was directly related to alleged malpractice on that day, and filed suit no less than two years later. Even assuming for the sake of argument that the plaintiff did not discover the alleged malpractice until subsequent treatment, that subsequent treatment was also more than two years prior to the filing of the complaint.
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TORTS, PROCEDURE :: MPLA Certificate of Merit
WESTMORELAND v. VAIDYA, No. 33459 (Per Curiam)(February 14, 2008). Granting mixed relief from an order of the Circuit Court of Mason County that dismissed a complaint for failure to comply with the certificate of merit requirement set forth in W.Va. Code 55-7B-6(b). When initiating suit, plaintiff relied on the exception to the certificate of merit requirement. See W.Va. Code 55-7B-6(c). The circuit court first ruled in its dismissal order that the case was subject to the certificate of merit requirement. Affirming the circuit court's determination that the case is controlled by the MPLA. Reversing and remanding for further consideration, to allow the plaintiff a reasonable amount of time to fulfill the pre-suit certificate of merit requirement prior to dismissal.
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TORTS, PROCEDURE, EVIDENCE :: Flood litigation, expert testimony
IN RE: FLOOD LITIGATION(Coal River Watershed) --AND-- IN RE: FLOOD LITIGATION (Upper Guyandotte River Watershed, Subwatershed 2a), Nos. 33664 and 33710 (Per Curiam)(Maynard, C.J., Davis, J., and Benjamin, J., disqualified)(Judge Russell M. Clawges, Jr., Judge Darrell Pratt and Judge O.C. Spaulding sitting by temporary assignment)(June 26, 2008). In cases arising from flood damage that were referred to the Mass Litigation Panel under Trial Court Rule 26, reversing the Panel judge's post-verdict order in one case, and reversing the Panel judge's dismissal order in a second case. In the Upper Guyandotte River case, holding that the Panel judge's order striking expert testimony offered by the plaintiff and setting aside a Phase I verdict returned in favor of the plaintiffs was improper, in that the expert testimony offered by the plaintiffs clearly met the liberal requirements of Rule 702 of the Rules of Evidence, was subject to testing by voir dire and cross-examination, and was properly considered by the jury. Because the weight of the evidence before the jury was not strongly against the plaintiffs, the award of a new trial was improper. Further rejecting a cross-assignment of error by the defendants below, as to whether the Phase I jury trial improperly included the issue of the reasonableness of the defendants' use of their property. Although the Phase I trial did not permit a complete range of evidence on reasonableness, such evidence could be developed in future proceedings, and a defendant's liability for damages to any plaintiff was not determined in Phase I. Because the Phase I trial was conducted in keeping with the approach approved in STATE EX REL. APPALACHIAN POWER CO. v. McQUEEN, 198 1, 479 S.E.2d 300 (1996), it does not deprive the defendants of due process. In the Coal River Watershed case, reversing the Panel judge's decision to grant the defendant's Rule 12(b)(6) motion to dismiss, there being no merit to the conclusion that the plaintiffs' complaint does not give the Coal River defendants fair notice of the asserted factual and legal basis for the claims. Remanding the matter to the Mass Litigation Panel for further proceedings.
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TORTS, SOVEREIGN IMMUNITY :: Federal claims properly dismissed, state claims weren't
PRUITT, et al. V. WEST VIRGINIA DEPT. of PUBLIC SAFETY, et al., No. 33526 (MAYNARD, C.J.)(June 3, 2008). Granting mixed relief from an order of the Circuit Court of Kanawha County that granted summary judgment to defendants in an action alleging various claims arising from a fatal shooting by a State Police Trooper. Holding that the circuit court properly granted summary judgment as to the federal claims, because the Department of Public Safety is not a "person" under 42 U.S.C. 1983. Further holding that the circuit court's grant of summary judgment on the state law failure to instruct and/or supervise claims was improper, in light of conflicting evidence giving rise to genuine issues of material fact. Finally holding that conflicting evidence also exists as to whether the doctrine of qualified immunity would bar a claim of negligence against the Department.
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WILLS & ESTATES :: Effect of will, cost of special appraiser
DANTZIC, et al. v. DANTZIC, et al., No. 33523 (Per Curiam)(Starcher, J., and Albright, J., concurring in part and dissenting in part)(Maynard, C.J., concurring)(June 17, 2008). Granting mixed relief from an order of the Circuit Court of Mineral County in a declaratory judgment action to construe a will. Holding that the circuit court correctly determined the effect of the will to be that the decedent died partially testate and partially intestate. Further holding that the appointment of a special appraiser to appraise nonprobate property was appropriate, but that the circuit court erred in requiring the parties to split the costs of the appraisal, where the applicable statute requires the costs to be borne by the estate.
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WORKERS' COMPENSATION, EVIDENCE :: Deference to OP Board conclusions
FENTON ART GLASS CO. v. WEST VIRGINIA OFFICE INSURANCE COMMISSION and JACK L. GARRISON, No. 33673 (Per Curiam)(Starcher, J., and Albright, J., concurring on part and dissenting in part)(June 26, 2008). Granting mixed relief from orders of the Workers' Compensation Board of Review in a case involving occupational pneumoconiosis. Holding that the administrative determination regarding the non medical exposure issue was properly decided and affirmed by the Board of Review. Further holding that the Board of Review improperly substituted its judgment for the expertise of the OP Board by reversing the OP Board's determination and granting the claimant a five percent award. The Board of Review violated the statutory standard of review by failing to accord deference to the medical findings of the OP Board. Remanding for entry of an order denying the claimant relief.
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WORKERS' COMPENSATION :: Psychiatric compensability
WILKINSON v. WEST VIRGINIA OFFICE INSURANCE COMMISSION and PUTNAM COUNTY BD. OF ED., No. 33672 (Per Curiam)(June 23, 2008). Addressing a technically moot issue, and reversing an order of the Workers' Compensation Board of Review that upheld an administrative decision that there was no justification for adding a psychiatric condition as a compensable component of an existing claim. Holding that the Office of Judges wrongly disregarded substantial evidence of record that claimant's psychiatric condition was related to her compensable injury. Further holding that the claimant did not have the burden to prove that her psychiatric condition did not result from another major medical procedure. Finally holding that the Office of Judges wrongly disregarded two medical reports submitted by the claimant as unreliable.
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WORKERS' COMPENSATION :: Administrative closure regulation conflicts with statute
LOVAS v. CONSOLIDATED COAL CO., No. 33670 (ALBRIGHT, J.)(Starcher, J., concurring)(May 23, 2008). Reversing an order of the Workers' Compensation Board of Review that affirmed an administrative closure of a nineteen percent permanent partial disability claim. Holding that the implementation of 85 CSR 1-13.1 generated the misconception that it is necessary to formally petition to reopen any claim closed administratively under the regulation, or to demonstrate an aggravation of the claimant's condition. The regulatory implementation conflicts with the intention of the Legislature, that a claim should remain open for medical benefits on an unlimited basis until it satisfies the statutory requirements for permanent closure identified in West Virginia Code 23-4-16(a)(4). Recognizing the value of an internal temporary deactivation for administrative reasons, and declaring the current regulation invalid. Requiring notice to each claimant whose claim remains active under the five-year rule to be notified that the claim has not been closed and that the standard evidence indicating that a requested authorization is medically necessary and reasonably required will justify continued action on the claim if appropriate under West Virginia Code 23-4-16(a)(4).
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Mozilla engineering project manager, Christian Legnitto, has detailed release schedule for Firefox 5, 6 and 7. If all goes to plan, the Firefox will be 6 0a1 of published next week, 12 April, and Firefox 7. 0a1 in the middle of May. The final version of Firefox 5 should be released on June 21, exactly three months after the release of Firefox 4.
Tags: move apps, Mac, MoOM, MoOM for Mac, MoomForMac, OSX, productivity, utilities, Windows Management, Windows, window size, window zoom, WindowManagement, WindowZooming, WindowMove, WindowSize events
Kindlebility is a bookmarklet that can send any Web page, you are viewing on your Kindle. Kindlebility formatted websites, so that they show on the Kindle is no pain. When setting it up (more coming soon), Kindlebility requires only one click verwenden-- and the pages are on your Kindle in seconds.
who is based on a carrier unlock your iPhone on another GSM operator use, the iOS can now plunge 4.3.1 thanks to ultrasn0w 1.2.1. The iPhone Dev team have worked, their magic ultrasn0w once again for the iPhone 4 (GSM), 3GS and 3 g to make functional and to fix a signal bar problem for anyone who maintain an older baseband, but not with unlock.
, here we are. More than four years after the start, switched and DownloadSquad are unfortunately closed is. I was thrilled that work on these two sites, tech reporting on the usual gadgets and social networks to Cook, culture, design, art and more have expanded. It is humiliating, with this incredibly dedicated and talented team of writers to work, and it would be impossible without having to do it.
a few moments before version 2 Banshee music player for Linux was released, brings with it a whole bunch of new features and the addition of offizielle-- but Alpha-quality - create window. The Mac OS X build of this version 2 is due later today.
LinkedIn, the "professional" social network an Android has finally app. The app was previously available for a while in beta. The final version provides support for news, as well as a new connection restore button, suggesting that people you may know on the basis of your profile and current connections. LinkedIn for Android has obviously all the features you would expect, making it easy to connect with other LinkedIn users from your Smartphone.
Windows 8 images still on the Internet, despite Microsoft's wallpaper-based ask, the access to the early versions leak. Today's rate courtesy CNBeta the upcoming Windows app store shows, some will probably feature prominently in Windows 8.
Google, Grooveshark has removed from the Android market. Movement, many months after Apple music app from its app store coming kicked, has to do with (what else?) top accusations from several music labels, the Grooveshark violates copyright law.
the Google i/O Conference, a gathering of the developers of to the around the world to San Francisco Moscone Center, sold out less than an hour. In an effort to include as many people, so clearly in the want to join the Conference Google will be the keynotes, sessions and developer sandbox, live on the website of Google i/O-stream. This is in addition to the already planned I/o expanded map of parties, Google and other host around the world.
the SeaMonkey project released SeaMonkey 2.1 Beta 3, a version that provides many new features to a wide audience for the first time available. Add a lot of material and tweaked as SeaMonkey 2.1 the streets already hit Beta 2 in February, and we now are a step closer to the final release of version 2.1 of the integrated Internet app suite.
just recently, the Opera 11.10 release candidate was available for download at the disposal. It brought a handful of new important features-such as HTML5 file API support and IMAP Verbesserungen-- and lots of bug fixes. In the middle of the other details in the Opera team announcement is an interesting tidbit: Opera 11.10 offers improved battery optimizations.
part of my system maintenance Toolkit for some time been Auslogics Disk Defrag. With the release of version 3.2, it is now even better with clean up and optimization of system disks. In addition to a cleaner, easier-to-use interface, the disk defrag 3.2 offers improved single-file and to defragment folder, processing of multiple disks better a simplified planning screen and more informative ScreenTips. Auslogics has refined the program of defragmentation and file consolidation algorithms.
version 5.3 of Skype for Windows has been released recently, with the focus on improving the new release received quality and the quality of the video of mobile Skype users. Probably a party of the video call to Skype for Windows 5.3, although use.
Firefox later today its largest developmental biology revolution ever undergo. Mozilla-Central, the source of the nightly builds is to version 5-given new numbers, and finally, after years of writhing have also a version to version 1, Mozilla rendering and layout engine, Gecko, the same updated Firefox.
Bing's new HTML5 and CSS3-advanced search interface, to present the power of the IE9 has been demonstrated, for the first time in September 2010 has started to roll-out.
we are not sure of the time line here, but it looks like Google now has rolled out the SPDY HTTP replacement to his full gaggle of Web services, including Gmail, docs and YouTube. If you are currently using Google chrome browser, use probably SPDY.
the crew in Oslo plug away at Opera 11.10 keeps, and the latest a snapshot build contains a number of improvements to Opera's built-in e-Mail client-as well as HTML5-related additions.
before recently Google has been busy to make more competitive with other location beefing, latitude apps-- and more fun to use. Location history was recently added, iOS users can via latitude-check-in the supply, and now has Google started rolling out location based offers that are bound to the service.
if TweetDeck landed in chrome Web store, it seemed like an indication that finally could develop it into a pure HTML5 Web application. Now it looks like that is exactly what will happen, announcement is the a new, not just for chrome WebClient for beta testing with TweetDeck, ready.
is with the right programs and hardware, the information on your screen from prying eyes to protect never a bad idea, and a very interesting offers new software by Oculis Labs take as you do just that. It is called PrivateEye, and it uses facial recognition to automatically "Growth filter" the contents of your display, looking away.
of the developers of iCab mobile, a feature-rich alternative to the Safari Web browser on the iPad and iPhone, has his ability to the download and install Apple's JavaScript module removal have been appointed.
Microsoft's business unit, which is just like most such updates Mac software-arm from the Redmond-based software giant is set to its first Service Pack for Office 2011 for Mac SP1 handle a variety of errors and roles in most of the updates, the in before it was easy to install package.
it's taken months confused looks, but Google is finally seen the light. That almost every places was called, is now simply lumped HotPot-test, the universally despised moniker for a service, in with places thrown.
now 8 pictures from leaky started Windows, it's only a matter of time until developers start release of mods for Windows 7, to imitate the upcoming features. Via have in Windows, this mod already discovered.
it's official, people! CyanogenMod 7 is now considered stable enough to be called good, stable. The ROM is now for your flashing pleasure on over 30 Ger?ten--including some tablets. Don't worry, let not disappoint; I have been using it throughout the development process for months and it is worth the wait also.
while we have but still nothing to see really earth shattering the tandem of Rafael Rivera, and Paul Thurrott discovered milestone 3 continue to churn out insight to interesting new features they have in Windows 8. The latest discovery is that Windows 8 Aero automatically to adapt your current wallpaper image according to. It is a bit like what already does Windows 7 with your taskbar icons: If an alert requires your attention, the symbol lights up with the dominant color (such as Firefox should light up Orange).
GNOME 3, after more than two years of development, has been released into the wild. GNOME 3 is not only the logical successor of GNOME 2: it is a completely new project, to create "completely new, modern desktop for today's users and technologies."
have you ever thought your Facebook status updates lacked finesse? Deplores always they say that about 30 seconds after the collision with send to the entire Facebook? Desired reading at all, you had your own personal Leonard Nimoy evidence the extent your mind dumps, before you make a fool of himself? Yes, me too, and now you can!
okay, I know what you think: chocolate on Download Squad? That's right! This is because Chocomize is one of the nerdiest online ways to get chocolate: it's a website where you your own bar with a multi-step process to customize.
angry birds is a franchise that Word cross-platform is certainly new meaning. Angry birds Rio, the latest installment of the bird lifting means series of Rovio mobile, is now in Nokia's Ovi store, available flugbereit on your Symbian device. Angry Android and WebOS has seen so far on iOS, birds of Rio.
the Gmail team has been busy behind the scenes of the late addressing an ample supply with little niggles. First up on the chopping block is annoying (or amazing) depending on how you look at it contacts the automatic save feature, since its inception the curse of the n-a PIN neat-freak (myself included). Google has finally added an option to disable the auto-save feature to contacts. It is on the tab 'General' of Google mail settings in the future and should anyone who synchronize their phone contacts with Google Gmail contacts please.
not satisfied with limiting its dominance in the streaming uploaded videos, YouTube is now ready to competitors such as Justin.TV and Ustream. The new YouTube Live service is on YouTube partner choose rolled out and enables real-time transmission. In the official announcement, Google explains that "the goal is to offer thousands of partners with the ability to live stream of their channels in the coming months."
Wladimir Palant, developer of the most popular activities in the world, Adblock Plus, is also an active contributor on the Planet Mozilla blog community. In the past days, when response investigated Palant on Mozilla's new name and shame list of activities which has slowly, that Mozilla's testing methods are in fact correct.
rejoice! No longer you have to fork over $700 for a license of Photoshop CS5! Adobe has unveiled a new subscription scheme, where you can rent the entire Creative Suite or individual packages, from month to month or for an entire year.
it is still a little strange see apps for Apple mobile platform deliver Microsoft. And it's even weirder still to a so sexy, as the new Bing app for iPad, see the sleek, immersive search experience brings to Apple tablet.
Zoho has offered a Unipod app for a while jetzt-- at least for the iPhone and iPod touch. Those who have been wanting to the Zoho app on your IOS uses were out of luck, but that is no longer the case.