WEST VIRGINIA RECORD

Motion Docket
Tuesday, Sept. 9

1. State of WV v. Frank D. Foster - 080311 - Defendant appeals his conviction of fleeing from an officer in a vehicle causing injury and second offense DUI following a jury trial. He was sentenced to 1 to 5 years for the felony offense of fleeing from an officer in a vehicle causing injury and 1 year for the second offense DUI, those sentences to be served consecutively. Defendant raises procedural and evidentiary errors below.

2. State of WV v. Troy Allen Coffman - 080360 - Defendant appeals from his convictions on various sex crimes. He was sentenced to 11 to 30 years in prison. Defendant challenges the circuit court's ruling refusing to suppress his confession.

3. State of WV v. Richard O. Rizk - 080571 - Petitioner, Richard O. Rizk, appeals his conviction of a felony count of distribution of a controlled substance and asserts that the failure of the State of West Virginia to disclose additional uncharged conduct of the confidential informant violates his right to due process of law under Article III, Section 14 of the West Virginia Constitution.

4. Retail Designs, Inc. v. WV Dept. of Highways and One Gateway Associates, LLC - 080390 - Third-Party Plaintiff One-Gateway Associates, LLC, appeals the circuit court's adverse summary judgment order on the issue of whether One-Gateway is entitled to a right-of-way.

5. State of WV v. Michael J. Gleason - 080645 - Defendant appeals from his convictions for abduction with intent to defile, unlawful assault, attempted sexual assault in the second degree, and burglary. Defendant contends that the circuit court erred in denying a judgment of acquittal on the abduction with intent to defile, the unlawful assault, and the attempted sexual assault in the second degree and seeks a reversal. He also seeks a reversal of his burglary conviction and a remand of the case for trial upon that offense alone. Defendant seeks such other relief as this Court deems proper.

6. Pamela Gainer v. WV DHHR/Bureau for Children and Families - 080666 - DHHR appeals from the circuit court's order reversing the decision of the West Virginia Education and State Employees Grievance Board upholding DHHR's 4-day suspension of respondent without pay.

7. State of WV v. Eric Cleveland Murph - 080843 - Eric Cleveland Murph appeals his conviction for First Degree Robbery. He argues that the circuit court erred by refusing to give a jury instruction on Petit Larceny, a lesser included offense.

8. Jean Kennedy v. Michael J. Tupta, Jr. - 080652 - The ex-wife in a divorce case appeals asserting that the family court and circuit court undervalued a marital asset, i.e., a dental practice, and that the courts failed to award her sufficient spousal support.

9. Jean Kennedy v. Michael J. Tupta, Jr. - 080845 - The ex-husband in a divorce case appeals asserting that the circuit court erroneously substituted its own judgment for that of the family court on the value of a dental practice, regarding the wife's health insurance, and when awarding attorney's fees to the wife, and that the circuit court erred when denying his request for attorney's fees incurred to defend himself against false accusations.

10. Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 080721 - Plaintiffs appeal from the circuit court's order granting in part and denying in part defendant DuPont's motion for partial summary judgment in this class action seeking medical monitoring, property remediation, and punitive damages. Plaintiffs assert that there were material questions of fact as to whether the contamination and injuries/damages due to the operation of a zinc smelter were contemplated by the original landowners and whether certain releases and easements executed in the 1920's provide immunity for those claims. Plaintiffs seek a reversal of the circuit court's order granting partial summary judgment in favor of defendants on the Property Class members' claims and request a remand for reinstatement and adjudication of those claims upon their merits.

Argument Docket
Tuesday, Sept. 9

1. William T. Smoot, II v. American Electric Power, et al. - 33806 - Plaintiff appeals from the circuit court's order granting summary judgment in favor of defendants in this personal injury action brought against defendants alleging negligence.
- Justice Benjamin disqualified.

2. Donald E. Largent v. Zoning Bd. of Appeals for the Town of Paw Paw, et al. - 33832 - Plaintiff appeals the circuit court's order granting summary judgment in favor of the respondent town and zoning board on the issue of validity of a zoning ordinance. Plaintiff argues that the ordinance is void ab initio because a comprehensive land development plan was not adopted prior to or contemporaneous with the ordinance.

3. Charles & Kathryn Beahm, et al. v. 7-Eleven, Inc. and Melissa Spinks - 33833 - Plaintiffs appeal from the circuit court's order awarding summary judgment in favor of defendant in this tort action arising out of an underground gasoline storage tank leak. Plaintiffs assert that the circuit court misapplied res judicata and erred in holding that plaintiffs have suffered no damages under West Virginia law.

4. Jimmy and Michelle Hardwick,et al. v. Rent-A-Center, Inc., et al. - 33706 - 1) What is the statute of limitations for a claim brought pursuant to the Consumer Goods Rental Protection Act, West Virginia Code, § 46B-1-1 et seq.? 2) Does Senate Bill 145 (Senate Bill 145 was passed March 10, 1994, and in effect from passage.) violate the one-object rule of Article VI, Section 30 of the West Virginia Constitution? 3) If Senate Bill 145 does violate the one-object rule, should the Court's ruling apply retroactively so as to invalidate the rules enacted therein?

5. In Re: Charleston Gazette FOIA Request - 33812 - This is a declaratory judgment action seeming a declaration of the City of Charleston's rights and obligations in responding to Freedom of Information Act request filed by the Charleston Gazette newspaper. The City sought a declaration as to whether certain requested documents were exempted from disclosure under the FOIA. The Circuit Court of Kanawha County dismissed the case sua sponte finding that any declaratory judgment would not settle the underlying controversy.

6. Cheryl D. Anders v. Zurich American Insurance Company - 33813 - Dismissed.

7. State of WV v. Earl M. Rutherford - 33828 - Earl Monty Rutherford appeals the enhanced sentence he received pursuant to W.Va. Code § 60A-4-408 upon his conviction for delivery of a controlled substance.

8. Waco Oil and Gas Co., Inc. v. Director, Div. of Mining and Reclamation - 33829 - The WV Department of Environmental Protection and its current Director appeal the Circuit Court's order which reversed a decision of the WV Surface Mine Board. The Board had affirmed the Director's decision to deny WACO Oil and Gas Company, Inc.'s application for a permit to quarry sandstone.

9. State of WV v. Heather Marie Haupt - 33830 - Heather Marie Haupt appeals following her conviction upon guilty plea to felony Possession with Intent to Deliver a Schedule IV Controlled Substance. She asserts that she lacked the requisite mental competency to enter the guilty plea. - Dismissed.

10. Lawyer Disciplinary Board v. Mark Blevins - 33281 - Formal charges were filed against Respondent in violation of the Rule 8.4. Misconduct of the Rules of Professional Conduct. Respondent solicited a known felon to obtain a "throw away" gun, and aided and abetted a known felon in a scheme to extort money through violence who owed Respondent money.

Motion Docket
Wednesday, Sept. 10

1. James R. "Sonny" Griffith v. Barbour County Board of Education - 080338 - Petitioner appeals from the circuit court's final order granting summary judgment in favor of the Barbour County Board of Education. Petitioner raises various procedural errors below, as well as constitutional arguments.

2. State of WV v. Dennis Gale Hubbard - 080642 - Defendant appeals from his conviction of second degree murder and his sentence of 40 years in the penitentiary. Defendant alleges prosecutorial misconduct, insufficiency of evidence to convict, and the failure of the circuit court to fully instruct the jury on the State's burden. Defendant seeks either a reversal of his conviction or a remand for a new trial.

3. Carl Wayne Baughan v. Greater Huntington Park & Recreation Dist. and Ingram Barge Co., et al. - 080752 - The barge line defendants appeal from the circuit court's order finding that they did not hold out their real or personal property for recreational use and, therefore, West Virginia Code §19-25-2, et seq. (West Virginia Recreational Immunity Statute), does not shield them from liability. The circuit court found that there was no genuine issue as to any material fact on that issue; that the barge line defendants would not be entitled to assert the recreational immunity statute as a defense; and, that a final judgment was entered on that issue pursuant to Rule 54(b) thereby making the ruling a final and appealable order.

4. State of WV v. Eric M. Taylor - 080849 - Petitioner, Eric M. Taylor, appeals his convictions on one count of third offense domestic battery and one count of battery. Petitioner was sentenced to a term of one to five years in the state penitentiary consecutive to a term of twelve months in the Southern Regional Jail.

5. Roundtree R. Goodman v. Thomas McBride, Warden - 080632 - Petitioner appeals from the circuit court's order denying, in part, his petition for habeas relief concerning the treatment he receives for his mental illness. Petitioner alleges cruel and unusual punishment by medical neglect and a denial of his fundamental constitutional rights.

6. State of WV v. David Eugene Moore - 080726 - David Eugene Moore appeals the circuit court's denial of his Motion for Reduction of Sentence. The court found that petitioner waived the right to move for reconsideration of sentence as part of his plea agreement, and that the motion for reconsideration was filed beyond the 120 day limit of Rule 35.

7. Sharon G. Noble v. WV Dept. of Transportation, Div. of Motor Vehicles - 080754 - The DMV appeals the circuit court's order which reversed the DMV's final order revoking Sharon G. Noble's driver's license for six months for DUI. The DMV argues that the circuit court erred when holding that Ms. Noble had been arrested pursuant to a municipal DUI ordinance and that the DMV had failed to ascertain, or even needed to ascertain, whether the municipal ordinance has the same elements as W.Va. Code § 17C-5-2.

8. Chad R. Clower v. WV Dept. of Transportation, Div. of Motor Vehicles - 080780 - The DMV appeals the circuit court's order which reversed the DMV's final order revoking Chad R. Clower's driver's license for six months for DUI. The court found that the arresting trooper lacked the requisite reasonable suspicion to initially stop Mr. Clower's vehicle, but the DMV argues that the exclusionary rule should not be applied to administrative driver's license revocation proceedings.

9. State of WV v. Michelle Michael - 080767 - Michelle Michael appeals her conviction for First Degree Murder with a recommendation of mercy and First Degree Arson, and the court's denial of her various motions. She asserts the court erred in excluding her evidence that the drug which caused the victim's death could be purchased over the Internet without a prescription; and that the State suppressed material, exculpatory evidence of the identity of the caller who told police to check for the presence of this drug.

Argument Docket
Wednesday, Sept. 10

1. O.J. Mayo v. The West Virginia Secondary Schools Activities Commission - 33838 - Defendant, The West Virginia Secondary Schools Activities Commission, appeals the circuit court's order striking as unconstitutional certain rules of the defendant, one of which was not at issue in the case, and the circuit court award of attorney's fees and costs to plaintiff.

2. Committee to Reform Hampshire Cty. Govt., et al. v. Richard Thompson, et al. - 33851 - Continued to October 7.

3. Paul E. Forshey & Melissa L. Forshey v. Theodore A. Jackson, M.D. - 33834 - Plaintiff appeals the dismissal of his medical malpractice lawsuit based upon the 10 year statute of repose of W.Va. Code § 55-7B-4(a). He argues that his suit should not be dismissed based upon the continuous medical treatment doctrine, the continuing tort doctrine, or the discovery rule.

4. American Modern Home Ins. Co. v. Jeff Cora, et al. - 33861 - The United States District Court for the Southern District of West Virginia submits an order of certification pursuant to West Virginia Code §§ 51-1A-1 to 51-1A-13 and presents the following question of law:

"The homeowner's policy in effect at the time of the underlying events provides coverage for an "occurrence," which is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period in . . . bodily injury or property damage." Under West Virginia law, does knowingly permitting an underage adult to consume alcoholic beverages on a homeowner's property constitute an "occurrence" within the meaning of the American Modern Home Insurance Company Homeowner's policy at issue in this case?

5. Matthew Brian Yoak, M.D. v. Marshall Univ. Bd. of Governors, et al. - 33863 - Continued to October 28.

6. Jeanne Cartwright v. Carl F. McComas, M.D. and Cabell Huntington Hospital - 33868 - Plaintiff appeals from the circuit court's order awarding summary judgment in favor of defendant hospital in this medical malpractice action.

7. SER Prosecuting Attorney of Kanawha County v. Bayer Corporation - 33871 - The petitioner, the Bayer Corporation, appeals from an Order dated August 10, 2006, by the Kanawha County Circuit Court, which reversed the decision of the Kanawha County Commission to exonerate Bayer's request for exoneration from erroneous personal property taxes assessments for tax years 2001, 2002, and 2003. The Kanawha County Circuit Court found that Bayer was not entitled to exoneration for the taxes previously paid. On April 30, 2007, the Circuit Court denied Bayer's Motions for New Trial and Reconsideration. Bayer now appeals the Orders of the Circuit Court.

8. Timber Ridge, Inc. v. Hunt County Asphalt & Paving, LLC and Jeffrey Greenburg - 33877 - The United States District Court for the Northern District of West Virginia, Martinsburg Division, submits the following certified questions:

"A. Whether a contractor who does not have a West Virginia contractor's license may utilize the courts to maintain a claim or counterclaim against the property owner.

B. Whether a landowner's knowledge of the contractor's unlicensed status estops the landowner from raising the contractor's unlicensed status.

9. State of WV v. Megan S. - 33831 - Juvenile appeals from the circuit court's order adjudging her as a juvenile delinquent for the offense of battery. The juvenile challenges that finding and asserts that she was denied effective assistance of counsel. - To be presented on briefs only without oral argument.

10. SER Hubert Lusk v. Honorable Robert L. Holland, Jr., Judge - 33923 - Petitioner seeks a writ of mandamus to compel the circuit court to set a timetable for briefs and motions, to order the circuit court to require his attorney to respond to him and to appoint a private investigator.- To be presented on briefs only without oral argument.

11. SER Jackie D. Terry v. Honorable Jay M. Hoke, Judge - 33924 - Petitioner, pro se inmate, seeks writ of mandamus to compel the circuit court to rule on his Post-Convicton Habeas Corpus pending since August 30, 2007. - To be presented on briefs only without oral argument.

12. SER 1Starr Dalton v. Honorable Booker T. Stephens, Judge - 34148 - Dismissed.