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Rory Perry: Topics-Civil
Information about recent WV Supreme Court cases and opinions involving civil matters.

• 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 v. WILLIAM H. DUTY, No. 33069, (Original opinion withdrawn when the Court granted a petition for rehearing.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.)

• 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.

• 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.

• ATTORNEY FEES, INSURANCE :: Fees allowed for litigation to reduce reimbursement claim
  

  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.

• 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.

• 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.

• 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.

• 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.

• CORPORATIONS, PROCEDURE :: Minority shareholder dissent action
  

  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.

• 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 min