SupCo Calendar for 3/27

Motion Docket
Tuesday, March 28

1. Dianna Mae Savilla, Admx. of the Estate of Linda Sue Good Kannaird v. Speedway Super-America, LLC, dba rich Oil Co., LLC, et al. - 052519 - Plaintiff appeals from the circuit court's order granting defendant Speedway SuperAmerica, LLC, d/b/a Rich Oil's motion to dismiss in this wrongful death and deliberate intent action.

2. Jerrill Davis and Virginia Davis v. Eagle Coal & Dock Co., et al. AND Glen Moore & Irene Moore v. J. H. Fletcher, & Co., et al. - 052480 - Defendant J. H. Fletcher & Company files its petition for appeal pursuant to an order certifying questions to this Court. The Order of Certification has been entered in seven civil actions pending before the circuit court.

THE CIRCUIT COURT HAS CERTIFIED THE FOLLOWING QUESTIONS:

1. Whether a determination of liability predicated on a roof bolter dust collection system design that has not been heretofore deemed permissible by MSHA/Secretary of Labor is subject to preemption by virtue of the conflict between such a judicial determination and 30 U.S.C.A. § 844 and/or the occupation of the field of roof bolter dust collection system design by Federal regulatory authorities.

ANSWER: YES.

2. Whether a determination of liability predicated on a failure to warn relating to a roof bolter's dust collection system via a warning not specifically prescribed by MSHA/Secretary of Labor is subject to preemption by virtue of the conflict between such a judicial determination and 30 U.S.C.A. § 844 and/or occupation of the field of roof bolter dust collection system and dust control warnings by Federal regulatory authorities.

ANSWER: YES

3. Larry R. George & Carolyn E. George v. Daimlerchrysler Corporation and Nitro Dodge, Inc.- 052701 - Defendants appeal the circuit court's order awarding plaintiffs $143,026.66 in attorneys' fees and costs. The jury awarded plaintiffs $6,950 in compensatory damages [$8,750 with prejudgment interest] on one of the plaintiffs' claims, breach of the implied warrant of merchantability.

4. State of W. Va. v. T. Y., Jr., et al. - 052871 - Petitioner, T. Y., Jr., an infant, appeals from his convictions for the offense of assault on a school employee and brandishing. Petitioner seeks a reversal of his convictions, a new trial, and a release on bond pending the new trial.

5. Margaret McClurken v. STG, Inc. - 052730 - Defendant appeals from an adverse jury verdict in this action brought under the West Virginia Human Rights Act.

6. David L. Adkins, Adm. of the Estate of Michael David Adkins v. Charles Ross Brunty, Charles Brunty & State Farm Mutual Automobile Insurance Co. - 052934 - Plaintiff David Adkins appeals the circuit court's order granting summary judgment to defendant State Farm in a declaratory judgment action concerning the validity of a waiver of underinsured motorist coverage.

Argument Docket
Tuesday, March 28

1. Harold Petry, II v. Commissioner, WV Division of Motor Vehicles - 32886 - Continued to May 10.

2. Carolyn Jenkins, Admx. v. State Farm Mutual Automobile Insurance Co. - 32895 - Plaintiff Carolyn Jenkins appeals the circuit court's order granting summary judgment in favor of defendant State Farm. She asserts that where there are multiple State Farm underinsurance policies which all covered her insured decedent, as administratrix she should be entitled to recover under the single policy which has the highest limits.

3. Dale Patrick Donahoe v. Victoria Diane Donahoe - 32763 - Mr. Donahoe appeals the family court's 03/04/04 Civil Contempt Order ordering that "on or before 03/20/04, Plaintiff Dale Patrick Donahoe shall pay unto Defendant Victoria Diane Donahoe the $1500.00 support arrears payment previously Ordered by the Court, as well as $2934.00 in support arrears accumulated since the 02/26/03 hearing in order to purge himself of Civil Contempt [or face sixty days of incarceration at the South Central Regional Jail] (pp. 5-6)." The court found that Mr. Donahoe owes Mrs. Donahoe $49,821.00 "in unpaid child support and mortgage payments, not including interest, through and including 02/26/03, and a decretal judgment is granted Defendant in that amount (p. 5)." Mr. Donahoe argues that he does not owe Ms. Donahoe for back mortgage payments "through and including 02/26/03" because the marital home was sold several years before.

4. SER Fred L. Buck v. Hon. David W. Nibert, Judge - 32972 - Defendant seeks issuance of a writ of mandamus arguing that the circuit court has not ruled upon pending motions in regard to his underlying habeas corpus petition.

5. Warren Carter, et al. v. WV Consolidated Public Retirement Board - 32849 - The Retirement Board appeals from the circuit court's order reversing the Board's final administrative decision that respondents are not entitled to have lump sum payments for unused leave included as "salary" for the PERS final average salary calculation purposes.

Argument Docket
Wednesday, March 29

1. SER City of Martinsburg v. Hon. David H. Sanders, Judge, et al. - 32868 - City seeks to prohibit the circuit court from exercising any further jurisdiction in a tort action asserted by the city firefighters alleging injury from exposure to diesel fumes.

2. Jeremiah "Bart" Morris v. Crown Equipment Corp, et al. - 32751- Plaintiff appeals the circuit court's orders dismissing his case without prejudice for lack of venue under W.Va. Code § 56-1-1(c).

3. Heartland, L.L.C., et al. v. McIntosh Racing Stable, L.L.C. - 32894 - Plaintiffs appeal from the circuit court's order granting summary judgment in favor of defendant in this action for breach of an oral contract for the sale of real property in which plaintiffs sought specific performance and monetary damages.

4. SER Brittney Mullins, et al. v. Gregory Burton, Comm'r, WCC - 32973

Petition for Writ of Mandamus
5. SER Joseph Cooper Cox v. Hon. James A. Matish, Judge - 32982 - Dismissed.

Requests for Oral Presentation
and
Petitions for Appeal
March 30, 2006

1. In Re: Marriage of Gary Wolfingbarger v. Pricie Fern Wolfingbarger - No. 052962. Petitioner husband appeals from the final order of the family court refusing to enforce the terms of a written property settlement agreement executed by the parties in connection with their divorce proceeding and from the circuit court's order upholding the family court's decision.

2. State of West Virginia v. Julian Rudolph Smith - No. 060159. Defendant appeals from his conviction of aggravated robbery following a jury trial. He seeks a reversal on the basis of trial error.

3. Leslie Francis and Regina Francis v. Kia Motors America, Inc. - No. 060168. Defendant appeals from an adverse jury verdict in this action brought under West Virginia's Lemon Law. A jury returned a verdict in favor of plaintiffs in the total amount of $23,882, and the circuit court awarded plaintiffs an additional $12,200 in attorney's fees.

4. Gregory E. Glaspell and Eric L. Glaspell v. Glaspell Lumber Company, Inc., and Mary Lea Glaspell, Executrix of the Estate of Arby E. Glaspell, deceased - No. 060169. Defendants appeal from the circuit court's order denying, in part, their motion for summary judgment in this Will contest action. The circuit court stated that there was no just reason for delay and that judgment was being entered pursuant to Rule 54 to make its rulings subject to appeal.

5. State of West Virginia v. Charles Wesley Thompson - No. 060175. Defendant appeals from his conviction on 19 counts of sex related crimes. He was sentenced to an effective term of 25 to 55 years. Defendant appeals alleging both evidentiary and trial errors.

6. State of West Virginia v. Vernon Henderson Dunlap, Sr. - No. 060177. Defendant appeals his conviction for first degree murder. He was sentenced to life in prison without mercy. Defendant raises various evidentiary and trial errors.

7. Donna J. Ford Sartin v. John Ford - No. 060179. Petitioner husband appeals from the circuit court's order as it relates to the issue of paternity and child support arrearage and reimbursement.

8. Donald Mullens v. West Virginia Department of Environmental Protection - No. 060195. Petitioner appeals from the circuit court's order affirming the decision of the Grievance Board, which upheld respondent's termination of petitioner's employment.

9. The County Commission of Raleigh County West Virginia, a public body corporate and politic v. The Town of Mabscott, Raleigh County West Virginia, a West Virginia municipal corporation, and The Town of Mabscott, a municipal corporation v. The County Commission of Raleigh County, West Virginia, a public body corporate and politic, and Riffe Enterprises, et al., Intervenors, - No. 060183. The Raleigh County Commission appeals the circuit court's order denying the Commission's petition for declaratory judgment and granting a petition for mandamus which the Town of Mabscott filed against the Commission. The court held that pursuant to statutory and case law, a county commission has no authority to review or challenge a town's certification of annexation without an election pursuant to W.Va. Code § 8-6-4.

10. Kerri Laney, Rex Brown, Vance Brown, Kenneth O. Brown v. John Chalfant - No. 060186. The plaintiffs petition for an interlocutory appeal from the circuit court's order denying their motion to dismiss the defendant's counterclaim, and from the court's denial of their motion to alter or amend that order.

11. State of West Virginia v. Steven Lee Walker - No. 060188. Steven Lee Walker appeals the circuit court's order denying his second motion for reconsideration of sentence. He was previously sentenced to 70 years for first degree robbery.

12. Donna Capparelli v. Gaetano Michael Capparelli, Individually and as Executor of the Estate of Benedetto Capparelli - No. 060208. Plaintiff Donna Capparelli appeals the circuit court's order granting summary judgment in favor of defendant Gaetano Michael Capparelli on plaintiff's claim to $59,142.06 from her deceased husband's estate.

13. Alfred L. Hill and Irlean O'Neal Hill (now Evans) - No. 060211. Alfred L. Hill appeals the circuit court's order which denied his appeal of a family court order. The family court denied Mr. Hill's motion to offset a previously determined child support arrearage.

14. State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General v. Imperial Marketing, Inc., et al and Seta Corporation of Boca, Inc. - No. 060213. The defendant, Seta Corporation of Boca, Inc., appeals the circuit court's award of summary judgment in favor of the plaintiff, the West Virginia Attorney General, and the circuit court's denial of relief from this judgment under Rule 60(b).

15. Sherl J., individually and on behalf of Rebecca J., a minor child v. Michelle Lynn O. - No. 060544. Petitioner appeals the circuit court's order which denied the appeal of a family court domestic violence protection order. While the protective order is in effect against petitioner, it was ordered that the petitioner's child would reside with the respondent, who is the child's father in Oklahoma.

16. State of West Virginia v. Thomas Menei - No. 060215. Thomas Menei appeals his conviction for first degree murder without a recommendation of mercy and the circuit court's order denying his motion for new trial.

17. John Smith and Katherine Sue Smith, his wife v. Irma Smith - No. 060281. Plaintiffs John and Katherine Smith appeal the circuit court's adverse order entered after a bench trial on their suit to reform a deed.

18. Tammy Birchfield, et al v. Independence Coal Company, et al. - No. 060451. The circuit court certifies the following questions:

1. Whether a cause of action exists in West Virginia known or referred to as either "voluntary assumption of duty" or as the "negligent performance of a voluntary undertaking" by common law, or by the adoption of the Restatement of the Law (2d) of Torts § 324A which provides:

"One who undertakes, gratuitously, or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if:

1. his failure to exercise reasonable care increases the risk of such harm, or
2. he has undertaken to perform a duty owed by the other to the third person, or
3. the harm is suffered because of reliance of the other or the third person upon the undertaking."?

Circuit Court's Answer to Quest. 1: Yes.

2. If the answer to Question 1 is "Yes," whether there may be liability applicable from a corporate parent, subsidiary or co-subsidiary, to employees of a subsidiary, co-subsidiary, or affiliate for its independent acts of negligence in the performance of such voluntary undertakings?

Circuit Court's Answer to Quest. 2: Yes.

19. State of West Virginia v. Tony Franklin Daugherty, Sr. - No. 060286. Petitioner appeals the December 27, 2005 order of the circuit court denying a Motion for a New Trial. On September 30, 2004, petitioner was convicted, following a jury trial, on four counts of sexual abuse by a parent, guardian or custodian.

20. Frank D.M. v. Melissa N.B. - No. 060289. This is a petition for appeal from the Order of the circuit court denying petitioner's appeal of the family court order which modified shared-custody.

21. Kenneth Saunders Carter v. Christina M. Karawan, on behalf of Blake Andrew Carter - No. 060292. Petitioner appeals the August 26, 2005 circuit court order granting the name change of Blake Andrew Carter, as requested by the child's mother, Christina Marie Karawan.

22. Mary Ellen Gainer v. John David Gainer - No. 060297. In this divorce proceeding, petitioner requests that this Court reverse and remand the appeal to the Family Court with directions to value pension benefits excluding premarital and post-separation credits and order an immediate distribution of the same.