NOLAND v. VIRGINIA INSURANCE RECIPROCAL, et al., No. 34702 (DAVIS, J.)(September 24, 2009). Granting mixed relief from an order of the Circuit Court of Raleigh County that granted partial summary judgment in favor of Virginia Insurance Reciprocal and dismissed claims against the remaining appellees. Reviewing the plain language of the primary and excess insurance policies at issue to conclude that there was no language that extinguished VIR's duty to continue defending the appellant under the funds remaining in the excess policy after a settlement occurred, especially in light of the fact that the very purpose of the umbrella policy was to provide coverage once the primary policy limits had been exhausted, in addition to the fact that the clear language of the umbrella policy provides that it will defend the appellant if the limits of the primary policy are exhausted. Further concluding that the "other insurance" clause in the umbrella policy cannot be invoked to preclude its defense of the appellant after the date of the settlement. Concluding that the circuit court properly dismissed both statutory and common law bad faith claims on statute of limitations grounds. Holding in syllabus point 4 that: "[t]he one year statute of limitations contained in W. Va. Code 55-2-12(c) applies to a common law bad faith claim." Further holding, in syllabus point 5: "In a first-party bad faith claim that is based upon an insurer's refusal to defend, and is brought under W. Va. Code 33-11-4(9) and/or as a common law bad faith claim, the statute of limitations begins to run on the claim when the insured knows or reasonably should have known that the insured refused to defend him or her in an action."

STONE BROOKE LIMITED PARTNERSHIP v. SISSINNI, ASSESSOR OF BROOKE COUNTY, et al., No. 34423 -AND- HEATHERMOOR LIMITED PARTNERSHIP v. ALONGI, ASSESSOR OF HANCOCK COUNTY, et al., No. 34424 -AND- PINE HAVEN LIMITED PARTNMERSHIP, et al. v. ADKINS, ASSESSOR OF CABELL COUNTY, et al., No. 34863 (DAVIS, J.)(Benjamin, J., concurring)(Ketchum, J., concurring)(September 24, 2009). In three consolidated cases arising from the Circuit Courts of Brooke, Hancock and Cabell Counties, addressing the proper method of assessing the value for purposes of ad valorem taxation of real property participating in the Low Income Housing Tax Credit Program. Concluding that the Brooke and Hancock County Circuit Court orders properly upheld the assessor's selection of the cost approach as the most accurate method of appraising the properties at issue, but concluding that the lower court failed to address whether the assessors had analyzed each of the factors to be considered in the appraisal of commercial real property set forth in W. Va. C.S.R. 110-1P-2.1.1 to 2.1.4, and remanding for further proceedings. Reversing the Cabell County Circuit Court's order because the assessor presented substantial evidence to support his cost approach and the circuit court's order did not address whether the assessor had analyzed each of the required factors, and remanding for reinstatement of the cost approach appraisals and for review the correctness of the assessor's application of the required criteria.

JEFFERSON COUNTY CITIZENS FOR ECONOMIC PRESERVATION v. COUNTY COMMISSION OF JEFFERSON COUNTY, et al., No. 34583 (KETCHUM, J.)(September 24, 2009). Reversing an order of the Circuit Court of Jefferson County that granted summary judgment in favor of a group that challenged the adoption of amendments to the county zoning ordinance that lowered the permitted housing density in the county's rural district. Holding that because the land use ordinance concerning amendments to the county's comprehensive plan relied solely upon a statutory scheme previously repealed, the ordinance is without authority to mandate the procedures to be followed by the county commission and planning commission in adopting or rejecting proposed amendments to the comprehensive plan and related ordinances. Remanding for reinstatement of the 2005 amendments to the ordinance.

CARPENTER v. LUKE, No. 34497 (Per Curiam)(September 24, 2009). Affirming an order of the Circuit Court of Harrison County that denied a motion to alter or amend judgment and a motion for new trial in a property dispute. Holding that the trial court properly entered judgment as a matter of law in favor of the plaintiff below on the issue of disputed ownership of certain real estate. Concluding that the trial court properly interpreted the context associated with the phrase "middle of the public road" set forth in the deed description, and further was correct in concluding that the defendant below's father could not have been a bona fide purchaser of land that was not included in his property description.

This is a test.

On October 9, 2008, the Court approved four rule changes related to mass litigation that become effective immediately. Those changes are:

1. Amendments to Trial Court Rule 26: These amendments relate to the Mass Litigation Panel, referral of cases, and conduct of business before the Panel, among other changes. An engrossed version of TCR 26 is also available.
2. New Trial Court Rule 15: This is a new rule that will allow the implementation of electronic filing and service in cases referred to the Mass Litigation Panel under Trial Court Rule 26. Electronic filing and service will not be used to initiate cases, and implementation will be triggered by entry of an order by the Panel (See TCR 15.02).
3. Amendment to Trial Court Rule 16.05(a): This amendment adds mass litigation to a list of exceptions from time standards otherwise applicable in civil litigation.
4. Amendment to Rule of Civil Procedure 5(e): This amendment enables electronic filing and service for post-complaint filings, following the model used to enable filing by facsimile.

In addition, the Court approved an amendment to Rule of Civil Procedure 3(a) that becomes effective on November 10, 2008. The amendment adds a second sentence to the existing rule, as follows: "(a) Complaint. [~] A civil action is commenced by filing a complaint with the court. For a complaint naming more than one individual plaintiff not related by marriage, a derivative or fiduciary relationship, each plaintiff shall be assigned a separate civil action number and be docketed as a separate civil action and be charged a separate fee by the clerk of a circuit court." For additional background on this rule, see syllabus points 3 and 4 of CABLE v. HATFIELD, 202 W.Va. 638, 505 S.E.2nd 701 (Davis, C.J.)(July 7, 1998).

Summaries of the first seven opinions issued in the September 2008 term of court were posted today. One opinion, Savarese v. Allstate, resolved a case that was argued in the January term of court. Unless otherwise stated, in all opinions issued this term, Justice Albright is not participating and Senior Status Justice McHugh is sitting by temporary assignment.

The final day of arguments in the September term of court is Tuesday, October 29.

IN RE: SAMANTHA S. AND HOPE S., No. 33713 (Per Curiam)(Sept. 26, 2008). Granting mixed relief from an order of the Circuit Court of Mingo County that terminated parental rights and awarded physical custody to the paternal grandparents. Holding that the circuit court correctly terminated parental rights and awarded custody to the paternal grandparents. Holding that the circuit court erred in granting unsupervised visitation to the maternal grandparents, and remanding for entry of an order terminating the visitation rights of the maternal grandparents.

SAVARESE v. ALLSTATE INSURANCE CO., et al., No. 33443 (BENJAMIN, J.)(Starcher, J., dissenting)(McHugh, S.S.J., not participating)(September 26, 2008). Affirming an order of the Circuit Court of Ohio County that dismissed a first-party bad faith action, pursuant to W.Va. Code 56-1-1(c), for lack of subject matter jurisdiction. Holding, in syllabus point 2, that: "Pursuant to West Virginia Code 56-1-1(c) (2003), a nonresident plaintiff must establish that all or a substantial part of the acts giving rise to his or her claims occurred in West Virginia in order to establish that venue is appropriate in this state where no claims are asserted against a West Virginia resident. In an action arising from the failure to pay a nonresident plaintiff's medical payment claims arising under a contract of insurance entered into and governed by the law of another state, the nonresident plaintiff's retention of a West Virginia attorney and communications to that attorney in West Virginia that the medical payment claims have been denied are insufficient, standing alone, to satisfy the requirements of West Virginia Code 56-1-1(c)(2003)." (Note: This case was argued in the January 2008 term of court.)

EASTHAM v. CITY of HUNTINGTON, No. 33807 (Per Curiam)(Benjamin, J., concurring)(McHugh, S.S.J., not participating)(Sept. 30, 2008). Reversing an order of the Circuit Court of Cabell County. Holding that a city ordinance requiring city employees to be residents of the city did not conflict with constitutional and statutory protections provided to civil service employees, and construing the ordinance to require a pre-disciplinary hearing that comports with constitutional and statutory requirements.

LAWYER DISCIPLINARY BOARD v. MARK A. BLEVINS, No. 33281 (Per Curiam)(Starcher, J., concurring)(September 26, 2008). Imposing harsher discipline than recommended by the Hearing Panel Subcommittee, after concluding that "the magnitude of respondent Blevins' actions, which included, at a minimum, recklessly encouraging a convicted felon to intimidate, by violence or the threat of violence, certain former clients who owed the respondent money, warrants the annulment of the respondent's license to practice in this State." Imposing additional conditions to be satisfied prior to reinstatement.

WEST VIRGINIA PUBLIC RETIREMENT BOARD v. JERRY ALLEN WEAVER, No. 33864 (DAVIS, J.)(October 10, 2008). Affirming an order of the Circuit Court of Kanawha County that held a public retiree had forfeited retirement benefits because the employee had rendered "less than honorable service" pursuant to W.Va. Code 5-10A-1 and 5-10A-2(e)(2). Holding that the circuit court properly determined that the appellant's conviction for felony conspiracy to buy votes was sufficiently related to his public office as Assessor of Lincoln County so as to render him ineligible to receive retirement benefits.

DAVIS MEMORIAL HOSPITAL v. WEST VIRGINIA STATE TAX COMM'R, No. 33862 (DAVIS, J.)(McHugh, S.S.J., disqualified)(Hutchison, J., by temporary assignment)(October 14, 2008). Affirming an order of the Circuit Court of Randolph County that affirmed an administrative denial of a claim for refund of West Virginia consumer sales tax and use tax paid for the year 2002. Holding that the circuit court properly included the hospital's receipts from patient revenues, also known as "exempt purpose income", in the definition of "support" as contained in West Virginia Code 11-15-9(a)(6)(F)(i)(II), thereby disqualifying the hospital from receiving an exemption from sales and use tax.

BEAHM, et al. v. 7-ELEVEN, INC. and MELISSA SPINKS, No. 33833 (Per Curiam)(Starcher, J., dissenting)(McHugh, S.S.J., not participating)(September 26, 2008). Affirming an order of the Circuit Court of Jefferson County that granted summary judgment to defendants in an action related to gasoline release from underground storage tanks. Applying the doctrine of virtual representation to conclude that privity exists between the appellants and plaintiffs in a prior action adjudicated on the merits. The prior action was sufficiently similar, and therefore the circuit court properly granted summary judgment on the basis of claim preclusion.

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.)

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.

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.

FAUBLE v. NATIONWIDE MUTUAL FIRE INSURANCE CO., et al., No. 33667 (Per Curiam)(Maynard, C.J., dissenting)(June 16, 2008). Reversing an order of the Circuit Court of Berkeley County that denied attorney fees sought by policyholders in connection with litigation to reduce the amount of reimbursement that their insurance company sought from them. Holding that an award of attorney fees is appropriate because of the litigation obligation imposed upon the policyholders, but that there is no evidence to support the amount sought, and remanding for further proceedings to determine the amount of reasonable attorney fees, including the fees and costs associated with the appeal.

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.

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.

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.

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.

DODD, et al. v. POTOMAC RIVERSIDE FARM, INC., et al., No. 33501 (Per Curiam)(June 13, 2008). Granting mixed relief from orders of the Circuit Court of Berkeley County in a minority shareholder dissent action. Holding that the circuit court did not abuse its discretion by accepting the special commissioner's stock valuation determination, but that the circuit court's multi-level interest award was unfair and inequitable. Imposing six percent simple interest. Finally determining that the circuit court did not abuse its discretion when requiring the corporation to bear the costs of the proceeding.

STATE v. JOSHUA LEE SLATER, No. 33659 (MAYNARD, C.J.)(Starcher, J., dissenting)(Benjamin, J., concurring)(June 9, 2008). Affirming jury convictions arising from the Circuit Court of Kanawha County for the offenses of kidnaping, domestic battery, wanton endangerment and daytime burglary by breaking and entering. Holding that unauthorized entry is not an element of the crime of daytime burglary by breaking and entering. Further holding that the circuit court properly sentenced the defendant to life with mercy on the kidnaping charge, where there was sufficient evidence for the jury to conclude that a concession was obtained. Further concluding that the sentence was within statutory limits and therefore not reviewable, that the jury's questions during deliberations were not the type requiring explanation beyond referring to the jury instructions, and that other objections to the jury instructions were waived by defense counsel.

STATE v. WANDA CARNEY and BETTY JARVIS, No. 33522 (Per Curiam)(April 25, 2008). Reversing convictions for one count each of obstructing a police officer and conspiracy to obstruct a police officer. Because the conduct was effected without force, reiterating that any obstruction conviction must be supported by conduct that is unlawful or illegal. Holding that none of the three instances cited by the State involved illegal conduct, and there was no evidence that law enforcement's investigation was impeded. Because there is no evidence to support the obstruction convictions, the conspiracy conviction fails as well.