Supreme Court calendar: Week of May 22-26

By The West Virginia Record | May 18, 2006

Motion Docket
Tuesday, May 23

1. Rick Alan Booth, II and Jennifer Booth v. National Casualty Co. - 052965 - Plaintiffs appeal from the circuit court's order awarding summary judgment in favor of the third-party defendant insurer on the issue of coverage.

2. Lonnie T. Campbell, et al. v. Hon. James J. Rowe, Judge, et al. - 052984 - Plaintiffs appeal the circuit court's order granting summary judgment to defendant the WV Department of Transportation, Division of Highways and the circuit court's order granting summary judgment to defendant Nationwide Mutual Insurance Company.

3. Daniel R. Strahin v. Earl Sullivan and Farmers & Mechanics Mutual Insurance Co. of West Virginia, Inc. - 052974 - Plaintiff Daniel Strahin appeals the circuit court's order granting summary judgment in favor of Farmers & Mechanics Insurance Company of West Virginia, Inc. on plaintiff's Shamblin v. Nationwide claim which had been assigned by the defendant Earl Sullivan. The court found that because a pre-trial Covenant Not to Execute between the plaintiff and the defendant insured meant that the insured's personal assets were no longer at risk, then there can be no Shamblin claim.

4. Ameriquest Mortgage Co. v. Eugene E. Brown and Debra A. Brown - 060017 - The defendants appeal the circuit court's order granting partial summary judgment in favor of the plaintiff mortgage company. The court ruled that while the defendants' counterclaim raises triable issues which remain for adjudication, these issues do not raise a defense to plaintiff's suit to take possession of property after a foreclosure sale.

5. State of W. Va. v. Brusie "Don" Lanham - 060176 - This is an appeal from the order of the circuit court denying the motion for a new trial filed by petitioner who was convicted of felony-murder. Petitioner was sentenced to life in prison without the possibility of parole.

6. State of W. Va. v. Aaron Nelson - 060066 - Petitioner appeals his conviction for first degree murder, first degree sexual assault, and kidnapping. He was sentenced to life without a recommendation of mercy for murder, 15 to 35 years for sexual assault, and life without a recommendation of mercy for kidnapping, said sentences to run consecutively.

7. Harold B. Wolfe and Luther Ellison v. Vips Alfizar - 060151 - On October 4, 2004, petitioners filed a Petition to enjoin Vips Alpizar from blocking access of plaintiffs across Turkey Creek and sought an Order that the Defendant construct a bridge across Turkey Creek. Summary Judgment was granted in favor of Vips Alpizar. Petitioner now appeals the circuit courts denial of their Motions for Reconsideration, Amendment to the Complaint and Summary Judgment.

8. Peggy S. Helms and Larry S. Helms v. Medical Assurance of West Virginia, Inc. - 060149 - Petitioner, the Medical Assurance of West Virginia, Inc., seeks a reversal of the circuit court's Order denying a request for Summary Judgment. Petitioner had argued below that the plaintiffs failed to file the Complaint within the one year statute of limitations pursuant to Klettner v. State Farm Mutual Auto Insurance Company.

9. Randall Renaldo v. Lois Renaldo - 060147 - The following case stems from a post divorce domestic relations proceeding. Petitioner prevailed below in the Family Court and the Court reduced the child support to $0.00. The Circuit Court overturned that part of the decision and petitioner now seeks to have the Family Court's decision reinstated.

10. Gary Wolfingbarger v. Pricie Fern Wolfingbarger - 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.

Argument Docket
Tuesday, May 23
State Capitol

1. Estate of Garrison G. Tawney, by L. A. Goff, Exex. v. Columbia Natural Resources - 32966 - The circuit court presents the following certified questions and its answers to those questions:

Question 1: Where the royalty language is as set out in Exhibit A, may a lessee of oil and gas in West Virginia deduct money and/or volume from the lessor's 1/8 royalty payments for post-productions expenses, where the lease does not provide specifically that the lessee may take such deductions from the royalty?
The circuit court answered this question: "No."
Question 2: Where in an oil and gas lease there is no specific provision allowing for deduction of post-production expenses does language such as "wholesale market at the well," "amount realized at the well," "net revenue realized," "1/8 of price," "net of all costs beyond the wellhead," and other language as set forth on Exhibit A, grant to the lessee the right to deduct post-production expenses from the lessor's royalty (assuming for purposes of this question that such expenses were reasonable and actually incurred)?
The circuit court answered this question: "No." - Chief Justice Davis and Justice Benjamin disqualified. Judge Kaufman and Judge Kirkpatrick sitting by temporary assignment.

2. Pamela Blethen, et al. v. WV Dept. of Revenue/State Tax Dept. & WV Div of Personnel - 32962 - Petitioners are 29 employees and former employees of the WV State Tax Department . These individuals initially filed two sets of separate grievances that were consolidated in the present grievance at Level IV. After the Level IV hearing, the WV Education and State Employees Grievance Board denied Grievances on procedural issues, standing, timeliness and res judicata. On March 17, 2005, the lower court affirmed, in part, and remanded, in part , the board's decision. The lower court affirmed the dismissal of some of the grievances at issue based on lack of standing of former State employees to file grievances and the application of res judicata. Petitioners assert that the lower court was erroneous on the standing and res judicata rulings. - Chief Justice Davis disqualified. Judge Kirkpatrick sitting by temporary assignment.

3. State of W. VA. v. Damien Ricketts - 32896 - Petitioner appeals from a July 15, 2005 conviction for misdemeanor battery. He was sentenced to twelve months in the North Central Regional Jail.

4. Lawyer Disciplinary Board v. John Patrick Ball, et al. - 31794 - The Court will hear argument in this lawyer disciplinary matter. - Justice Starcher disqualified. Judge Jennifer Bailey Walker sitting by temporary assignment.

5. Marfork Coal Co. v. Director, WV DEP & Janice Nease and Freda Williams - 32874 - This action arises out of the W.Va. Dept. of Environmental Protection's suspension of a Marfork Coal Company surface mining permit. The West Virginia Supreme Court of Appeals remanded a previous appeal on October 25, 2004 for consideration of the substantive issues. - Dismissed.

6. Mary Rose v. Billy Wayne Dunlap - 32901- Mr. Dunlap appeals two orders entered by the Circuit Court of Randolph County on 12/22/04, in which the court modified in part, affirmed in part the order of the Family Court of Randolph County entered on 09/02/04 adopting a parenting plan in regard to Mr. Dunlap and Mrs. Rose's minor child. - To be presented on briefs only without oral argument.

7. SER Thomas Henderson v. Hon. Mark Karl, Judge - 32970 - Petitioners seeks to compel the circuit court to rule on a pending habeas corpus petition. - To be presented on briefs only without oral argument.

8. SER Donald C. Conway v. Hon. Martin J. Gaughan, Judge - 32971 - Defendant, pro se, convicted by guilty plea to incest and sexual abuse, seeks issuance of a writ of mandamus arguing that the circuit clerk has not docketed his underlying habeas corpus petition as required by law. - To be presented on briefs only without oral argument.

9. SER Joseph E. Howard v. Circuit Court of Pocahontas County - 33008 - Dismissed.

Requests for Oral Presentation and Petitions for Appeal
May 24

1. Thomas D. Felton v. West Virginia Department of Health and Human Sources/Bureau of Public Health and Division of Personnel - No. 060748. Petitioners appeal from the circuit court's order reversing the decision of the West Virginia State Education and Employees' Grievance Board, which found that respondent's grievance was untimely. The circuit court ruled that the grievance was timely filed.

2. James W. Kessel, M.D., Richard M. Vaglienti, M.D., and Stanford J. Huber, M.D. v. Monongalia County General Hospital Company, d/b/a Monongalia General Hospital, a West Virginia non-profit corporation; Mark Bennett, M.D., individually; Bennett Anesthesia Consultants, P.L.L.C.; and Professional Anesthesia Services, Inc. - No. 061180 . Plaintiffs appeal from the circuit court's order granting partial summary judgment in favor of defendants as to all State antitrust claims. The circuit court's order reflects that it was a final and appealable judgment and that there was no just reason for delay, but it refused to grant a stay.

3. State of West Virginia v. Gerald Thompson, Jr. - No. 060760. Defendant appeals from his conviction on "attempting to operate or operating a clandestine drug lab."

4. State of West Virginia ex rel. Zelda Trembly Eagle v. Orville Trembly and The Honorable David Nibert, Judge of the Fifth Judicial Circuit - No. 060766. Petitioner files this petition for appeal and for a writ of prohibition challenging the circuit court's ruling dismissing two 1-count indictments for rape under the provisions of the relevant statutes as they existed in 1923 and 1976.

5. State of West Virginia v. Keith William Lowe - No. 060798. Defendant appeals from his conviction on first degree murder without mercy.

6. Stephanie R. Timmermeyer, Secretary, West Virginia Department of Environmental Protection v. Thomas R. Michael, Chairman of the West Virginia Surface Mine Board, and Goals Coal Company, and Coal River Mountain Watch, and Honorable Joe Manchin, III, Governor of the State of West Virginia - No. 060800. Petitioners appeal from the circuit court's order denying their request for a writ of prohibition and injunctive relief. Petitioners seek a reversal of the circuit court's ruling that the "executive deliberate privilege" does not exist in West Virginia. Petitioners also seek an immediate order prohibiting the disclosure of internal deliberations and communications between the Department of Environmental Protection and the Office of the Governor.

7. State of West Virginia v. Jesse James Wiley - No. 060826. Defendant appeals from his convictions on first degree sexual assault, sexual abuse by a custodian, and incest. Defendant states that he seeks either a reversal of his convictions or a new trial.

8. SER TATRA RESTAURANT, INC. a West Virginia corporation v. HONORABLE STEPHEN R. KERSHNER, Judge of the City of Martinsburg Municipal Court; MICHAEL COVELL, Martinsburg City Engineer/Planning Director; JOHN WHITACRE, City of Martinsburg Code Enforcement Official, and MARTINSBURG BOARD OF ZONING APPEALS, No. 060434. Tatra Restaurant, Inc. appeals the circuit court's order denying its petition for a writ of prohibition seeking to stop the respondent Martinsburg officials from prosecuting alleged zoning violations.

9. State of West Virginia v. David Nelson - No. 060836. David Nelson appeals his conviction for first degree murder, kidnapping, first degree sexual assault, conspiracy to commit murder, conspiracy to commit kidnapping, and conspiracy to commit first degree sexual assault. He was sentenced to two consecutive terms of life without mercy, plus 18 to 50 years.

10. Martha Alexander v. The Board of Education of the County of Putnam - No. 060837. County school board employee appeals the circuit court's order which affirmed the grievance board. The grievance board upheld the school board's decision that when petitioner ultimately leaves her employment, she must reimburse the school board for 1 day of paid leave which petitioner took but which she had not accrued.

11. In re: The Marriage of John Austin Elmore v. Pamela Davis Elmore - No. 060907. John A. Elmore asserts 31 assignments of error in a divorce case.

12. WesBanco Trust and Investment Services, a division of WesBanco Bank, Inc., a West Virginia Corporation v. Brian McKinley, Camden McKinley, Randall McKinley, and David McKinley, No. 060906. Three brothers appeal the circuit court's declaratory judgment order in a dispute concerning the sale of their mother's home to a fourth brother on terms they consider inadequate.

13. State of West Virginia v. Larry T. Sawyer, No. 060909. Larry T. Sawyer appeals his convictions of burglary and petit larceny.

14. SER Abner D. Allen v. Thomas McBride, Warden - No. 060749. Petitioner appeals the denial of his second petition for habeas corpus. He asserts ineffective assistance of prior habeas counsel.

15. West Virginia Division of Natural Resources v. Rocky A. Tingler - No. 060860. Petitioner appeals the lower court's granting of a Injunction to the DNR prohibiting the petitioner from engaging in any activity that affected the quality or quantity of the water to the Bowden Fish Hatchery. Specifically, the court prohibited petitioner from removing water from trenches that were created.

16. Rebecca Vilga v. Weirton Medical Center and Lawrence E. Callahan, M.D. - No. 060945. A jury rendered a verdict in favor of Respondents in this claim for medical malpractice. Petitioner appeals the lower court's denial of her Motion for a New Trial.

17. State of West Virginia v. Terry Lynn McCoy - No. 060946. Petitioner appeals from the lower court's ruling with respect to the admission of certain evidence and the defendant's criminal trial for the felony offenses of Sexual Assault in the First Degree and Sexual Abuse by a Parent, Guardian or Custodian and the sentence imposed by the circuit court. Petitioner seeks a remand for re-sentencing.

18. Elena Ermaloeva v. Shephard University - No. 060950. This is an appeal from a dismissal by the circuit court from an administrative decision and affirmation of the decision. Petitioner seeks to reverse the findings of the court and grant the petitioner tenure at Shepherd University.

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