Rory Perry: WVSCT OpinionsSummaries and links to the full text of opinions issued by the Supreme Court of Appeals of West Virginia.ATTORNEYS, PROPERTY :: Former representation conflict- February 1, 2008 STATE EX REL. JEFFERSON COUNTY BOARD OF ZONING APPEALS v. WILKES, et al., No. 33500 (STARCHER, J.)(November 20, 2007). Granting a writ of prohibition to prevent enforcement of an order of the Circuit Court of Jefferson County that denied a motion to disqualify counsel. Holding that the circuit court improperly determined that each step or stage of a conditional use permit application was a separate and not substantially related matter pursuant to Rule 1.11(a) of the Rules of Professional...http://www.state.wv.us/wvsca/Clerk/Recent/2008/02/01.html#a1338 CONTRACTS, CONSTRUCTION, PUBLIC FINANCE :: Scope of subcontractor for claims on bond- February 1, 2008 PREUSSAG INTERNATIONAL STEEL CORP. v. MARCH-WESTIN CO., et al., No. 33286 (STARCHER, J.)(Albright, J., concurring)(November 9, 2007). Answering a certified question from the United States District Court for the Northern District of West Virginia in a dispute over a claim against the surety bond obtained in accordance with W. Va. Code 38-2-39, relating to the construction of a new Student Recreation Center at Fairmont State College. A raw steel supplier to a custom steel fabricator sought to...http://www.state.wv.us/wvsca/Clerk/Recent/2008/02/01.html#a1337 CONTRACTS, TORTS :: Breach of contract to purchase coal truck- February 1, 2008 T & R TRUCKING, INC. v. MAYNARD; FARLEY, Appellant, No. 33346 (Per Curiam)(November 21, 2007). Granting mixed relief from an order of the Circuit Court of Wayne County entered following a jury verdict favorable to the appellee on a counterclaim in a breach of contract action. Holding that the circuit court properly excluded evidence regarding the fact that appellee did not have a driver's license or coal truck driver certification at the time the contract was executed. Further holding that...http://www.state.wv.us/wvsca/Clerk/Recent/2008/02/01.html#a1336 CONTRACTS, TORTS, PROCEDURE :: Construing a forum selection clause, res judicata- February 1, 2008 CAPERTON, et al. v. A.T. MASSEY COAL CO., et al., No. 33350 (DAVIS, C.J.)(Starcher, J., dissenting)(Albright, J., dissenting)(Benjamin, J., concurring)(November 21, 2007). Reversing a jury verdict obtained following a lengthy trial in the Circuit Court of Boone County. 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...http://www.state.wv.us/wvsca/Clerk/Recent/2008/02/01.html#a1335 CRIMINAL :: Numerous errors rejected, second degree murder- February 1, 2008 STATE v. ERIC ALLEN FOSTER, No. 33323 (Per Curiam)(Benjamin, J., disqualified)(Moats, Judge, by temporary assignment)(November 19, 2007)(Rehearing denied, January 10, 2008). Affirming an order of the Circuit Court of Nicholas County imposing two consecutive forty-year sentences upon jury conviction for two counts of second degree murder. Rejecting assertions that there was insufficient evidence of intent. Further holding that certain jury instructions and selection of certain jurors did not..http://www.state.wv.us/wvsca/Clerk/Recent/2008/02/01.html#a1334 CRIMINAL :: Proportionality of 212 year sentence; effectiveness of habeas counsel waived- February 1, 2008 STATE EX REL. FREDERICO HATCHER v. McBRIDE, Warden, No. 33244 (Per Curiam)(November 9, 2007). Affirming an order of the Circuit Court of Cabell County that denied a post-conviction habeas corpus petition. Holding that the 212 year sentence for a single count of aggravated robbery was within statutory limits and that the circuit court properly took into account the defendant's extensive and escalating criminal history. Deeming the defendant's skeletal argument regarding ineffective assistance.http://www.state.wv.us/wvsca/Clerk/Recent/2008/02/01.html#a1333 CRIMINAL :: Negligent homicide- February 1, 2008 STATE ex rel. NELSON, Prosecuting Attorney v. FRYE, No. 33499 (Per Curiam)(November 8, 2007). Denying a writ of prohibition sought to prevent dismissal of negligent homicide charges following a logging truck accident that resulted in the death of another driver. Holding that where the evidence showed that the truck driver was in excess of the recommended speed, but not over the speed limit, there was insufficient evidence of reckless disregard to sustain the charges.http://www.state.wv.us/wvsca/Clerk/Recent/2008/02/01.html#a1332 CRIMINAL :: Incest, sexual assault, double jeopardy- February 1, 2008 STATE v. JONATHON FREEMONT RAY, No. 33324 (BENJAMIN, J.)(Starcher, J., concurring)(Albright, J., concurring)(November 8, 2007). Affirming sentences upon multiple convictions for sexual assault, incest and other sex-based offenses imposed by the Circuit Court of Preston County. Rejecting defendant's assertion that consanguinity is an element of the offense of incest, and holding that the statutory definition of incest is met where the victims were stepchildren of the defendant's biological...http://www.state.wv.us/wvsca/Clerk/Recent/2008/02/01.html#a1331 CRIMINAL :: Sufficient evidence to support sexual abuse by custodian- February 1, 2008 STATE v. KENNETH RAY COLLLINS, No. 33300 (Per Curiam). Affirming a conviction and sentence imposed by the Circuit Court of Mingo County upon conviction for one count of sexual abuse in the third degree and one count of sexual abuse by a parent, guardian or custodian. Holding that the record ñ- including evidence that the defendant "controlled and supervised the eleven year old girl on numerous, albeit temporary, occasions when he would take her away from home to go riding on his...http://www.state.wv.us/wvsca/Clerk/Recent/2008/02/01.html#a1330 CRIMINAL :: Lesser-included misdemeanor, statute of limitations defense waived- February 1, 2008 STATE v. DANIEL B. BINGMAN, No. 33299 (Per Curiam)(Starcher, J., dissenting)(Albright, J., dissenting)(October 26, 2007). Affirming a conviction and sentence imposed by the Circuit Court of Gilmer County upon conviction for one count of petit larceny in violation of W. Va. Code 61-3-13(b). The indictment for grand larceny occurred more than one year after the offense. Holding that defense counsel failed to object to jury instructions on the lesser-included offense, thereby waiving any statute.http://www.state.wv.us/wvsca/Clerk/Recent/2008/02/01.html#a1329 |